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Recent Posts in Temporary Custody Category
| October 31, 2011 |
| GRANDPARENT RIGHTS: Recent RIVERSIDE Case Orders VISITATION To GP After DEATH OF PARENT |
| Posted By Thurman Arnold, CFLS |
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Hoag v. Diedjomahor (October 17, 2011), E050935
The Facts
The Fourth Appellate Division released a published opinion on October 17, 2011 in the case of
Hoag v. Diedjomahor, a case which was decided by recently retired
Commissioner Michael McCoy in
Indio, California, involving grandparent visitation rights upon the death of a parent per
Family Code section 3102. Commissioner McCoy's ruling in favor of the grandmother was upheld on appeal. Interestingly, the grandmother did not participate in the appellate level proceedings but nonetheless succeeded. Overturning a well reasoned trial court decision, where an abuse of discretion must first be shown, is always a difficult proposition.
Melville Diedjomahor (the father) and Kristen Hoag (the mother) were married in 2005. They lived with Kristen's mother, Shannon Hoag (the grandmother) in an apartment in La Habra. Kristen gave birth to their first daughter in 2006. Thereafter the parties separated. Melville moved to Desert Hot Springs, California, while Kristen and the minor remained with the maternal grandmother. Then the parties reconciled, and the family - including Shannon Hoag - moved into a residence together in DHS. In 2008 a second daughter was born.
Kristen filed for divorce in Indio in February, 2009. A month later she died unexpectedly as a result of previously undiagnosed epilepsy. Immediately following the death the children remained with the grandmother, and the father would come visit every few days.
Several months later the grandmother told the father she intended to file a guardianship proceeding. In reaction thereto, Melville demanded that she turn the children over to him. The proceeding was filed, alleging that the father was unfit because of injuries and also because he was in the country illegally and subject to deportation. Communications between the two rapidly deteriorated such that - according to grandma, he refused to give her any further visitation except that which was court-ordered; the father denied imposing this limitation to the trial court. In any event the GM was denied access to the children for some weeks after she filed her guardianship petition, until Commissioner McCoy entered visitation orders some three weeks later.
To complicate matters, grandmother was living together with Kristen's uncle, where the children and Kristen had also stayed for a time before her death, and - as we so regularly see if high conflict family law cases - father alleged that the uncle had improperly touched his niece, Kristen, years before when she was a minor. In 1993 grandmother's children had been removed from her custody because she had been using drugs. For these reasons grandmother should not have extended visitations, he argued.
Nonetheless, grandmother received visitation with the minors pending a trial. The guardianship proceedings were dismissed and continued within the family law action that Kristen had initiated. This visitation gave the grandmother three hours every Wednesday and 48 hours every other weekend, and she was allowed a daily phone call. This became her proposal for the final visitation order. It was based upon the mediator's recommendations.
Melville claimed at trial that he would permit grandmother to visit, but objected to any orders issuing for same and instead insisted it should be left to his discretion for day to day and moment to moment. He contended that overnights were not safe because the children might be exposed to the uncle (by this time the grandmother had moved into an apartment by herself, in the same complex as dad), that he wanted to study the kids on Wednesday, and he objected to daily calls because they interrupted what he was doing. He explained that once grandmother had filed court proceedings she had breached any trust that had previously existed between them. Hence, his final non-court order proposal was eight hours every other Saturday and one week during the summer with no sleep overs, and eight hours on grandmother's birthday.
Ultimately Commissioner McCoy found that while the father was in fact a fit parent, but that he had opposed grandmother's requests for what was in fact a reasonable visitation schedule. The Court specifically found that the father's testimony that he would allow non-court ordered visitation to occur to not be credible, and the trial court also dismissed the allegations regarding the uncle and the grandmother's past conduct (although noting that Commissioner McCoy had prohibited such contact in any event). It found that visitation was in the children's best interest, particularly so given the the years that grandmother had acted as a third parent for the children and the parties before the divorce was filed. Essentially, the trial Court ruled that a parent does not have unfettered discretion to impose visitation conditions at their whim where grandparents have played such an important historic role for children.
The Law Concerning Grandparent Visitation
This decision does an excellent job in reviewing and cleaning up California decisions about grandparent visitation in the wake of
Troxel v. Granville (2000) 530 U.S. 57, decided by the United States Supreme Court almost twelve years ago. Like
Troxel,
this case involves a grandparent, whose adult child has died, seeking visitation with that child's minor children over the objection of their surviving parent. As noted by Justice Richli, who wrote the opinion for our local Riverside County based appellate division, Troxel commands the courts to presume that the surviving parent's objection to grandparent visitation is in the best interest of the children. "However, this does not mean that the surviving parent is free to use the denial of visitation as Big Bertha in his or her personal war with the grandparent." Here, the trial court found that the surviving parent's claimed reasons for objecting to visitation were not reasonable and not credible; in essence, as he practically admitted on the stand, he objected to visitation mainly
to spite the grandparent. Moreover, he admitted that grandparent visitation would be in the best interest of the children. Thus, the presumption that he was acting in the best interest of his children was overcome, and the trial court constitutionally could and did grant the grandparent's visitation petition.
The trial court understood the law to be that it could constitutionally apply section 3102, including its best-interest test, provided the father was either (1) unfit, or (2) "opposed to occasional visitation." It expressly found that he was a fit parent. It concluded that "the issue really turns on whether dad is opposed to occasional visitation. If he is, then the court then addresses what visitation, if any, is in the children's best interest." It found that the father was "opposed [to] any . . . reasonable visitation involving the children and grandma." Thus, it proceeded to apply a standard best-interest test.
The father challenged this reasoning by arguing that the trial court erred by finding that he was opposed to meaningful visitation. Second, even assuming that he was opposed to meaningful visitation, he was still entitled to a presumption that his decision was in the best interest of the children.
The justices in this case stated:
"In Troxel, the surviving parent's willingness to allow visitation was just one of a number of factors that the Supreme Court took into account. Thus, the significance of this single factor, standing alone, is not at all clear. We have no way of knowing what the outcome would have been if the surviving parent had
not been willing to offer meaningful visitation.
On one hand, the Troxel plurality cited, with approval, various state statutes allowing courts to award visitation to a nonparent when a parent has denied visitation; it evidently viewed these as constitutional. (
Troxel,
supra, 530 U.S. at pp. 71-72 [plur. opn.].) On the other hand, it adopted a broad 'presumption that fit parents act in the best interests of their children.' (
Id. at p. 68.) It would seem that this should apply not only to a decision to limit visitation, but also to a decision to deny visitation entirely.
In fact, Troxel's discussion of willingness to allow visitation puts the parent in a 'damned if you do, damned if you don't' position. If the parent voluntarily allows some visitation, that could be viewed as a concession that visitation is in the best interest of the child. Certainly it is a decision regarding the child's best interest, to which the court must {Slip Opn. Page 15} accord 'special weight.' If, however, the parent refuses to allow
any visitation voluntarily, that, too, weighs in
favor of court-ordered visitation. What is a parent who genuinely believes that visitation would be detrimental supposed to do?
Because this issue is fraught with difficulty, we choose to assume - solely for the sake of argument - that the trial court erred by ruling that it was free to apply a best-interest test solely because the father was not willing to offer meaningful visitation voluntarily. This would mean that it was still required to presume that the father's visitation determination was in the best interest of the children and to accord special weight to that determination.
The trial court's other findings, however, show that, even if it had applied this standard, it would still have allowed visitation. Most crucially, it found that the father's claimed reasons for objecting to visitation were not reasonable and not credible. This left, as his real reason, a desire to retaliate against the grandmother for her attempt to take the children away from him. Indeed, he testified that he was contesting visitation because she had breached his trust by trying to take the children away from him, and she had been 'disrespectful' to him. We hasten to add that this is a completely understandable reaction. Nevertheless, it is not based on the best interest of the children. To the contrary,
it punishes the children for the sins of the grandmother. [Emphasis added].
Moreover, in closing argument, the father's counsel conceded that visitation with the grandmother would be in the best interest of the children. He merely argued that
court-ordered visitation would be detrimental. Thus, the trial court did not simply disagree with the father concerning the best interest of his children. Moreover, it did not fail to give sufficient weight to his determination of their best interest. Rather, based on its findings (and his concession), the presumption that his visitation determinations were in the best interest of the children was thoroughly overcome.
Evidently the father's counsel was trying to achieve the same outcome as in Kyle O. The father there, too, admitted that visitation with the grandparents was in his daughter's best interest and claimed that he would allow visitation voluntarily. He testified, however, that
court-ordered visitation was detrimental because it increased the hostility between him and the grandparents. (
Kyle O. v. Donald R.,
supra, 85 Cal.App.4th at pp. 858-859, 863-864.) He also introduced evidence that court-ordered visitation had interfered with the child's opportunities to spend time with him and her paternal relatives and that it conflicted with her other activities. (
Id. at pp. 857-858.) The appellate court concluded that "his preference for a less structured and more normal and spontaneous manner of visitation must be given deference." (
Id. at p. 863.)
Kyle O. is distinguishable, however, because here, the father (and his counsel) never really explained
why he objected to court-ordered visitation, even though he was supposedly willing to allow visitation voluntarily. When asked, he simply raised objections to the existing temporary visitation
schedule. For example, he claimed that the Wednesday evening visit prevented him from "study[ing]" with the children.
This was not an objection to court-ordered visitation.
In this appeal, the father claims that it was reasonable for him to be opposed to court-ordered visitation, as opposed to voluntary visitation, because the grandmother had 'a pattern of hostility' toward him. He argues that, unlike voluntary visitation, court-ordered visitation would give her a stick to beat him with - any time he violated an order, she would undoubtedly seek sanctions against him.
The problem with this argument is that the father himself never testified, at trial, that this was
why he opposed court-ordered visitation. Thus, the trial court did not have to accept this theory.
The father also argues that the trial court erred by dismissing his concerns about whether the children would be safe with the grandmother. The trial court, however, specifically found that these concerns were neither reasonable nor credible. Substantial evidence supports this finding. The supposed molestation was remote; it had occurred when the uncle was about 12 and mother was about 5. It was described as 'improper[] touch[ing];' the grandmother characterized it as 'playing doctor.' The children had stayed at the uncle's house for over a month without being molested. In any event, by the time of trial, the grandmother was no longer living with the uncle. The trial court could and did order that the children not be left alone with him.
The grandmother's drug use was similarly remote. Her loss of custody, although due, in part, to her use of drugs, had been only temporary. It did not appear that she had ever used drugs again. Last, but not least, again, the father admitted that visitation was in the best interest of the children and claimed that he was willing to allow visitation voluntarily.
Next, the father argues that the trial court erroneously placed the burden on him to prove that his objections to visitation were in the best interest of the children. Not so. He does not cite any portion of the record to support his claim, and we have found none.
Finally, the father argues that even if the trial court did not err by allowing some visitation, it erred by adopting a more extensive visitation schedule than he was willing to offer. He does not support this argument, however, with any analysis or citation of authority. Accordingly, we deem it forfeited....
We do not mean to suggest that, if not forfeited, it would have merit. The trial court found that the father's objections to visitation did not arise out of a genuine concern for the best interest of the children. Thus, the constitutionally established presumption that he was acting in the best interest of the children was overcome. This not only allowed but affirmatively required the trial court to determine what visitation schedule was in the best interest of the children.
* * *
The father argues that ... the trial court could not order visitation unless and until he had been given an opportunity to negotiate visitation voluntarily.
He had such an opportunity, however, in the course of the guardianship, as well as in this action. He even participated in mediation (which regrettably produced no agreement). According to the father, however, a grandparent must ask the surviving parent for a voluntary visitation arrangement before the grandparent can even file a visitation petition with the court. Thus, in his view, the fact that he had an opportunity to negotiate a voluntary visitation arrangement after this proceeding had already been filed is irrelevant. We find no authority for this in Troxel or
Punsly. Indeed,
Punsly is, if anything, to the contrary. It understood
Troxel to mean that "the parent must be given an opportunity to voluntarily negotiate a visitation plan," but it added that it was "irrelevant" when or why the parent did so. (
Punsly v. Ho,
supra, 87 Cal.App.4th at p. 1108.) Moreover, it held that, in the case before it, this requirement had been satisfied by the parent's agreement 'to voluntarily arrange visitation . . .
both before and after the [
grandparents]
petitioned the court for visitation.' (
Ibid., italics added.)
The father argues that it would be good public policy to make a request for voluntary visitation a precondition to filing a visitation petition. Even if so, this is an argument that must be made, if at all, to the Legislature. Section 3102 contains no such requirement, and the federal Constitution, as construed in Troxel, does not impose one."
Comments
Commissioner McCoy did an outstanding job, as he always did, in making a thorough and well-reasoned decision based upon the evidence. To resist visitation by a grandparent who has a close and substantial relationship with grandchildren, there needs to be real evidence in the record that the children's best interests in continuing, stable relationships with these third party nonparents, are not being ignored simply out of spite.
This case is a must read for all grandparents, or custodial parents, faced with a grandparent or other request for visitation rights by a non-parent. I will upload the opinion itself in a few weeks. It gives rich fodder for how to structure arguments on both sides in these often acrimonious, but always unfortunate, disputes.
However, as it turns out, this decision is not the final answer on the matter. I will discuss the more recent case of Rich v. Thatcher, out of Ventura County, shortly. But, this is not the Ventura "Thatchers", is it?
Please note that this decision is based upon Family Code section 3102, which only applies where one parent has died. The other grandparent visitation statutes are Family Code section 3103 and
FC section 3104. I would suspect, however, that this case will nonetheless generalize, to an extent that remains to be seen, to grandparent visitation where both parents are still living.
Thurman Arnold, III, CFLS
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| April 11, 2011 |
| San Diego Trial Court REVERSED for Failing to Exercise An "INFORMED DISCRETION" in Refusing to Permit Sole Legal Custody Father Who Had PRIMARY PHYSICAL CUSTODY to MOVE OUT OF STATE |
| Posted By Thurman W. Arnold, III, C.F.L.S. |
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F.T. vs. L.J. (2011) 194 Cal.App.4th 1
On April 6, 2011, the California Fourth Appellate District, Division One, in a strongly (and painfully) worded opinion reversed a San Diego trial judge's refusal to permit a father to relocate with the parties' four-year old son to the State of Washington to join his new wife and her family. While recognizing that the standard of appellate review of trial court custody and visitation orders is the "deferential abuse of discretion test," the appellate justices found that Superior Court Judge Lisa C. Schall's decision was influenced by her misunderstanding of the law applicable to several subjects, including move-away, and accordingly that "a discretionary order based on the application of improper criteria or incorrect legal assumptions is
not an exercised of
informed discretion and is subject to reversal even though there may be substantial evidence to [otherwise] support that order." Traditionally most judges have lived and ruled under the assumption that if it a decision is "discretionary" their orders are impervious to reversal unless they almost shock the conscience of the reviewing court. This is a big flag waving otherwise.
Following on the heels of
Irmo ["In Re the Marriage of"]
Duris & Urbany,
Irmo Tharp, and
Irmo Fong all within the past six months, it is clear that a movement is afoot among the State's appellate courts to force family court trial judges to expand their knowledge of family law beyond 'seat of the pants' decisions. However, for the lawyers, therapists, psychologists, and family court services folks who may read this Blog - beware: What is being demanded from all of the [us] professionals is an entirely new level of knowledge and expertise that is long overdue. In my opinion the appellate judges are undertaking an admirable effort to triage and correct the very mistakes that historically made family law - the one area that most law-abiding citizens ever personally experience within our government sponsored legal system - the under-appreciated step-child of the courts. Such a transformation is vitally important to the rule of law, due process, the public's perception of government and fairness, and the functioning of our ever-increasingly complicated society and personal relationships.
It is time that judges, lawyers like me, mental health professionals, and everybody else involved in the family law justice system increase our commitment and expertise to serving the people - possibly such as yourself - who are and will remain not only our reason for being, but the source of our livelihoods.
F.T. v. L.J., case number D057493, 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 3111 evaluators 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!
Thurman W. Arnold, III, C.F.L.S. |
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| April 08, 2011 |
| I Have My Ex-Husband's EMAIL PASSWORD and Found Email That Proves His INABILITY TO PARENT - How Do I Present This to the Family Court? |
| Posted By Thurman Arnold, C.F.L.S. |
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Q. My ex-husband and I are involved in a bitter custody dispute. I recently realized he had not changed his Email password, and so I was able to enter his account and review his emails. I found evidence that proves he is using drugs, and I think this puts my son at grave risk. How should I best present this evidence to the Family Law Judge?
A. In my opinion you don't, and I'd advise you to stop snooping his emails no matter how important you think it is for the safety of your child. Beyond the fact that you expose yourself to a civil lawsuit for invasion of the Father's privacy, and have violated various State and Federal laws, you run a couple of other serious risks that may adversely affect the custody outcome you seek - these far outweigh whatever advantage you think the information gives you.
Most importantly as it relates to custody under California law, invading someone's email account and sharing what you find quite arguably constitutes a form of domestic violence. This was established two years ago in a case entitled Marriage of Nadkarni (2009) 173 Cal.App.4th 1483. If permanent restraining orders are issued in a domestic violence action that your ex could choose to file against you when he learned what you'd done (i.e., when you submitted the emails as exhibits filed with the court), a smothering presumption arises against you under
Family Code section 3044 "that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Section 3011." In other words, if the family court granted orders against you as a result of this conduct, you may end up assuring you lose your case and hence the ability to safeguard the very persons whom you hope to protect.
In Nadkarni the Husband gained access to the wife's email account and attached copies of her private email between she and others (including her attorney) to show that Mother had lied to Child Protective Services, and that she'd told the children to lie to him as well - and more. Husband argued he had "no choice" but to use these emails because his "kid's safety was at stake" and that he'd accessed the accounts "in sheer panic and desperation" to protect the children. Sound familiar?
Upon discovering this Wife immediately sought temporary restraining orders pursuant to Family Code section 6320. That section permits courts to issue DV orders to stop behavior that amounts to "disturbing the peace." She alleged that she had never authorized Husband to use the account or given him the password. She also claimed that Husband was using the information to stalk her, and that his activities made her fearful because he'd beaten her badly during the marriage - and was criminally convicted of same.
While a temporary order was issued upon her application, at the hearing for permanent restraining orders her application was denied. The trial court felt that this behavior did not rise to the level of what should be restrained under the Domestic Violence Prevention Act.
Wife appealed and the trial court's interpretation of FC §6320 was reversed. The appellate court ruled "we believe that the Legislature intended that the DVPA be broadly construed in order to accomplish the purpose of the DVPA. Therefore, the plain meaning of the phrase 'disturbing the peace' in section 6320 may include, as abuse within the meaning of the DVPA, a former husband’s alleged conduct in destroying the mental or emotional calm of his former wife by accessing, reading and publicly disclosing her confidential emails." The case was ordered sent back to the trial court to hold a full hearing on the wife's claims. I imagine she won that hearing.
Family law disputants are often acting in "sheer panic" but the ends do not justify the means. You risk blowing yourself up if you attempt to use the material you obtained in any way. Destroy it. I suppose we could come up with exceptions or justifications under extreme facts, where for instance a conspiracy to commit a murder or some other major crime was uncovered, that might trump the prohibition against this type of behavior. But the value of what you have here is insufficient to justify your actions, and the evidence would likely not be admitted anyway over an objection. Even if your husband does not press the advantage you potentially give him by seeking DV orders against you, most judges (and hopefully a lawyer advising you) will question your decision-making abilities once you expose what you did. A lawyer would be ill-advised to submit these emails to the court on your behalf, not merely tarnishing his own reputation but possibly exposing himself to civil liability as well.
Resist your panic, and resist your curiosity. These disputes dial people into temporary insanity and reactivity, and often the result winds up bringing about the very thing they most fear (this dad gaining primary physical custody and reducing your custodial timeshare). There are better ways to skin this cat.
Thurman W. Arnold, III, C.F.L.S.
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| December 20, 2010 |
| 2011 REVISIONS to the California FAMILY CODE: "CHILD CUSTODY RECOMMENDING COUNSELORS" |
| Posted By Thurman Arnold, CFLS |
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Family Code section 3183, which governs custody mediators who are required by Family Code section 3160 to be offered by all California Superior Courts, has been revised effective 1/1/11 to mandate that any recommendations be "first provided [to] the parties and their attorneys, including counsel for any minor children, ... in writing in advance of the hearing." The court is required to confirm that this has occurred before commencing with a custody for visitation hearing. It also changes and presumably unifies what courts and litigants call these mediators, as quoted below.
Old section 3183 relied solely on local court rules to determine when and to whom the recommendation would be delivered, and new 3183 retains the same language. This is the new portion of the statute:
"... if the mediator has first provided the parties and their attorneys, including counsel for any minor children, with the recommendations in writing in advance of the hearing. The court shall make an inquiry at the hearing as to whether the parties and their attorneys have received the recommendations in writing. If the mediator is authorized to submit a recommendation to the court pursuant to this subdivision, the mediation and recommendation process shall be referred to as 'child custody recommending counseling' and the mediator shall be referred to as a 'child custody recommending counselor.' Mediators who make those recommendations are considered mediators for purposes of Chapter 11 (commencing with Section 3160), and shall be subject to all requirements for mediators for all purposes under this code and the California Rules of Court. On and after January 1, 2012, all court communications and information regarding the child custody recommending counseling process shall reflect the change in the name of the process and the name of the providers."
While this creates uniformity among all California Family Courts in requiring the parties and their lawyers receive the report "in advance" of the hearing, it begs the question of "when." The day of? The day before? Ten days prior? Evidently at the moment this is still left to local rule or a judge by judge policy since the question is left to the discretion of the judge.
Many smaller courts are forced to rely on outside counselors to provide mediation services. This is true in Blythe, for instance, and I believe in Joshua Tree. Larger courts have in-house teams of salaried mediators. I imagine the statute is written to bring the courts with small budgets in line with state-wide practices of giving advance notice of recommendations, and to call all of these workers by the same title.
T.W. Arnold, III |
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| December 14, 2010 |
| 2011 REVISIONS to the California Family Code: Child Abuse and Temporary Orders |
| Posted By Thurman Arnold, CFLS |
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Effective January 1, 2011, Family Code section 3027 has been amended to authorize courts to "take any reasonable, temporary steps as the court, in its discretion, deems appropriate ... to protect the child's safety until an investigation has been completed" when allegations of child abuse have been made.
Previously this section only applied to allegations of "sexual abuse."
This will include allegations made by so-called "mandatory reporters," although the statute speaks only to child custody proceedings that are already pending. Presumably the innocent parent will file something at once and seek no-visitation orders based upon this section.
Thurman W. Arnold III
Certified Family Law Specialist |
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| December 12, 2010 |
| ELLEN KELLNER'S CO-PARENTING BOOK Inspired Me: How Can I Get My Ex Into Counseling? |
| Posted By Thurman Arnold |
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Q. I found Ellen Kellner's book "The Pro Child Way, Parenting With An Ex" on your
Desert Collaborative Divorce
website some weeks ago, and ordered it from Amazon.com. I have been eagerly reading it, especially because of the up-coming holidays. I am wondering if you can tell me, is there any way in California to force my ex-husband to do some child-centered counseling with me? I think we could start talking better if we were in a safe environment.
Rebecca in San Dimas
A. Rebecca, I am so pleased that you are taking the time to read Ellen's book! She is a dear friend of mind, and a tireless proponent of co-parenting techniques for the sake of children. I have copies of her book which I give away to my clients, since finding resources for dealing with divorce and parenting issues is crucial to moving on. (I recently had a concerned grandmother waiting for me to finish my work with her son, and I noticed the book seemed stuck to her hand!)
California Family Code section 3190 authorizes Family Courts to require parents (or any other party) who are involved in a custody or visitation dispute to participant in outpatient counseling for up to a year.
Unfortunately, the court needs to first make findings that the dispute "poses a substantial danger to the best interests of the child" and that counseling is in the best interests of the child. It is quite ironic that in order to get counseling the dispute must reach such a magnitude of dysfunction. Custody proceedings must be pending, but even if they aren't it should be sufficient to just file a motion or OSC, allege facts that meet section 3190's requirements, and request the orders. In cases involving a history of domestic violence or abuse, this counseling can be ordered separately per
FC section 3192.
I am so pleased for you and your children that you are motivated enough to investigate these options. They are well-served.
BTW, Ellen is available for phone and possibly Skype based consults if you think it might be helpful to meet with her for further ideas and direction.
Happy holidays to you and your family!
T.W. Arnold, CFLS
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| December 05, 2010 |
| ATTORNEY FEES In CUSTODY Cases: 2011 Family Code Amendments |
| Posted By Thurman Arnold III, CFLS |
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Along with other changes to the California Family Code brought about by the Elkins Committee's recommendations, Family Code section 3121 has been amended to make its language consistent with revised section 2030. Amended Family Code section 3121 is effective January 1, 2011.
Family Code section 3121 has always been more liberal than other attorney fees provisions in the California Family Code, but in my experience most lawyers, parties, and judges have acted like it did not exist. I have rarely seen an attorney argue for attorney fees under this section, probably because such arguments historically fell on deaf ears. That may be changing.
Section 3121 authorizes attorney fees in certain types of cases that are otherwise not mentioned in §2030, like paternity cases. It applies whenever custody is at issue.
An important difference between section 3121 and Family Code section 2030, besides the fact that 2030 deals with actions generally (dissolution, annulment, and legal separation) while 3121 is aimed at custody proceedings taking place in an OSC (Order to Show Cause) or NOM (Notice of Motion) format, is that attorney fee requests can be made "by an oral motion in open court" either at "the time of the hearing" or at any other time before entry of a judgment against a party whose default has been taken.
In other words, the request can be made without prior notice for the first time when the parties appear in court on a custody related application. However, I have never seen a Court willing to grant such an oral request, although clearly trial courts are directed to consider them. Possibly this will change, and certainly attorneys and parties seeking to get money to hire an attorney should be arguing the Elkins changes to stubborn judges. The likelihood that these judges will be reversed on appeal now for refusing to award fees to needy parties in appropriate cases is vastly improved beginning in 2011.
For more information about the grounds and procedures for seeking attorney fees in family law cases, please try my on-site search engine.
Thurman W. Arnold III, CFLS*
*State Bar of California, Board of Legal Specialization
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| December 03, 2010 |
| ELKINS and New FAMILY CODE SECTION 217: How It AFFECTS YOU! |
| Posted By Thurman Arnold, CFLS |
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The most important new rule in decades affecting the experience of California Family Law litigants is set to be unleashed on January 1, 2011.
It promises a radical change in the way that all family court proceedings - whether they be dissolutions, legal separations, annulments, support applications, custody, and modifications of all of the above - are processed and decided by Superior Court judges and commissioners.
This is a result of the Elkins Task Force, which has been quietly operating in the background of the California family law world since roughly August 6, 2007, when the game changing case of Jeffrey Elkins v. Superior Court (2007) 41 Cal.4th 1337 was decided by our California Supreme Court.
Elkins was a landmark decision which held that the Contra Costa County Superior Court could not through its local rules limit parties in marital dissolution actions to introducing evidence in written declaration form that had to be submitted in advance of trial, or prohibiting except in "unusual circumstances" one party from cross-examining the other about the contents of those declarations. Such a rule, intended for the sake of calendar management and judicial economy, not only had the practical if unintended consequence of favoring parties with attorneys who understood how to work with these rules but fundamentally it violated due process by cutting off litigants' abilities to present all relevant, competent evidence on material issues. Judges, as the triers of fact, are not able to assess witness demeanor and credibility without live testimony.
What is earth shattering about this decision in these economic times is that the Contra Costa Superior Court had urged that its policies and local rules were essential for the "expeditious resolution of family law cases." Soon to be former Chief Justice Ronald George rejected this justification:
"We are aware that superior courts face a heavy volume of marital dissolution matters, and the case load is made all the more difficult because a substantial majority of cases are litigated by parties who are not represented by counsel. [Reference omitted]....
In light of the volume of cases faced by trial courts, we understand their efforts to streamline family law procedures. But family law litigants should not be subjected to second-class status or deprived of access to justice. Litigants with other civil claims are entitled to resolve their disputes in the usual adversary trail proceeding governed by the rules of evidence established by statute. It is at least as important that courts employ fair proceedings when the stakes involve a judgment providing for custody in the best interest of a child and governing a parent's future involvement in his or her child's life, dividing all of a family's assets, or determining levels of spousal and child support....
Trial courts certainly require resources adequate to enable them to perform their function. If sufficient resources are lacking in the superior court or have not been allocated to the family courts, courts should not obscure the source of their difficulties by adopting programs that exalt efficiency over fairness, but instead should devote their efforts to allocating or securing the necessary resources."
Justice George ended by directing the California Judicial Council to create a task force (the 'Elkins Task Force) "to study and propose measures to assist trial courts in achieving efficiency and fairness in marital proceedings and to ensure access to justice for litigants, many of whom are self-represented. Such a task force might wish to consider proposals for adoption of new rules of court establishing state wide rules of practice and procedure for fair and expeditious proceedings in family law, from the initiation of an action to postjudgment motions. Special care might be taken to accommodate self-represented litigants. Proposed rules could be written in a manner easy for lay-persons to follow, be economical to comply with, and ensure that a litigant be afforded a satisfactory opportunity to present his or her case to the court." Hence, the Elkins decision is essentially a Jeffersonian ruling that its intended to empower family law litigants and to require counties and courts to adapt.
The Elkins Task force completed its work and has issued lengthy recommendations. The first changes take place on January 1, 2011. Possibly the most important change is embodied in Family Code section 217. It states:
"(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.
December is new legislation month at the Southern California Family Law Blog presented by Family Law Attorney Thurman W. Arnold. My goal is to inform you well, and early on, on any number of topics that will improve your outcome in family law matters and hopefully help you to reach results that are fair for you, your spouse or ex-partner, your children, and your blended and extended families.
T. W. ARNOLD, III, CFLS
(State Bar of California, Board of Legal Specialization) |
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| December 01, 2010 |
| New Family Code Section 3042 - Will It Serve to Accelerate the GENDER CUSTODY WARS? |
| Posted By Thurman Arnold |
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AB 1090, sponsored by Assemblywoman Fiona Ma, becomes law on January 1, 2011 as revised Family Code section 3042. It directs courts to allow children age 14 or over to testify about their custody preferences except where judges make findings on the record why they will not permit it beginning January 1, 2012. The legislation also directs the California Judicial Council to develop policies and procedures for examining child witnesses in the meantime.
Is section 3042 a good idea? On balance I strongly doubt it. The likelihood of misusing this new license, given how we humans tend to behave when we are steeped in relationship conflict, will for many parents be just too powerful a force to avoid. Parents will feel invited to have discussions that were previously considered inappropriate under the guise of fulfilling a perceived legislative mandate to inquire into childhood preferences. And it won't stop with "Johnny, who would you rather live with, your mom or me" but will inevitably expand into questions about what underlies Johnny's preferences. California is theoretically a no-fault state at least in terms of grounds for dissovling marriage, but fault has always lurked beneath the surface in custody contests. Newly enacted section 3042 takes this to a new, much messier level that potentially assaults children directly as potential co-conspirators with parents who have no concept of age appropriate boundaries. The legislation is silent on creating resources to help parents understand that children are not supposed to be one parent's best friend after the other parent leaves the family.
Which is not to imply that no children will benefit from it. Still,....
While it is true that children are routinely blocked from meaningfully expressing important preferences in custody cases under current law before this change, I have to observe that in my years of family law practice I have had many clients (both mothers and fathers) who I have either witnessed or suspected of pressuring children in alienating ways to express a preference in that parent's favor (and I also attempted to put a stop to it by explaining the emotional damage this may cause). I have seen many more parents on the opposing side who do so, and their lawyers whom I believed encouraged such activity.
What happened at father's house, at mother's house, with their new spouse or girlfriend or boyfriend, and so much more is just too enticing a subject for some parents and now that information will be considered relevant by parents who may feel they are being invited to obtain children's statements of parental preference. These parents will attempt to introduce such information to the court, whether in their own declarations and testimony or through the voice of the kids. Children will be questioned and interviewed by parents, and enlisted as co-participants in particularly the high conflict parenting struggles. If the parents are unable to maintain a sensible decorum in managing discussions with their children, how can we expect children not to be cast adrift on the seas of emotion that accompany divorce and custody contests?
Under the new statute either minor's counsel, an evaluator, investigators, or mediators who provide custody recommendations to the court, must indicate to the Judge whether the child wishes to address the court - and the judge is also required to ask this question. Either parent's attorney may also make that representation to the Court, which then triggers the issue. It is hard to imagine that any attorney or self-represented party who finds themselves on the otherwise loosing end of a custody evaluation or recommendation will not make this request. Indeed, it will be attorney malpractice not to do so!
An unfortunate consequence of this new statute will be to aggravate what I see as the gender wars between mothers and fathers in custody disputes. Some mothers believe that they are by nature better suited to child rearing, and the reality is that many do serve their children very well as the primary psychological parent particularly in early life. Some fathers believe that they are disenfranchised by such views, and make a conscious decision to step out of children's lives "until they get older". Any battle is unfortunate, and also creates victims. We all decry in theory the lack of fathering in our society.
Since mothers are statistically in greater control of children than fathers (again, perhaps for good and valuable reasons), the effects of this statute will fall more heavily in favor of mothers and so against fathers - which is possibly, but not of a certainty, one reason why Assemblywoman Ma may have introduced it. More likely, the idea sounded better than the reality may become.
I suspect I will be accused of gender bias in saying this. But because mothers more commonly find themselves as children's primary parents for much of children's adolescence (sometimes by default since some fathers don't seem willing to assume the role or take on a greater parenting responsibility) this statute will have an effect of encouraging behaviors that promote manipulating discussions with children about which parent they should prefer. Few parents of either sex will likely resist the challenge of not overstating their child's supposed desires in their own favor.
Courts and the Judicial Council will need to develop policies and procedures that minimize the negative impacts of this new battlefield on our children. There are certain to be child casualties, however, and I am left wondering which outweighs the other: the costs to children of conflicted parents, or the benefits?
T.W. Arnold, III, CFLS
December 1, 2010
www.ThurmanArnold.com
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| December 01, 2010 |
| Can My CHILDREN TESTIFY About Their PARENT PREFERENCE in Our Custody Case? |
| Posted By Thurman Arnold |
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Q. We have a hearing coming up before the Christmas holidays over custody and visitation issues. I believe my children should testify in court about their father's living conditions, as well as what they have told me about some things involving the woman he has sleeping over, and what their preferences are as to custody. Is this possible?
A. It is possible under current Family Code section 3042. It may or may not be a wise choice for the sake of your kids, however, since it sounds as if you expect one or more of them to say things to the judge that might be make them feel as if they've betrayed their dad, chosen you over them, or that they are being placed into the middle of your dispute. I beg you think carefully about what you say to your children, and what you do here.
AB 1050 passed both houses of the California legislature in August, 2010. It becomes law on January 1, 2011 as revised Family Code section 3042. However, it is not implemented until 1/1/2012. Existing law required family courts "if a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, to consider and give due weight to the wishes of the children" in making custody orders.
New Family Code section 3042 will require courts to permit a child who is 14 years of age or older to address the court regarding custody or visitation unless the court determines that doing so is not in the child's best interests, and in that case the court must explain that finding on the record. When judges and family court commissioners are instructed to state their findings on the record, it can sometimes be easier for them not to error on the side of permitting the testimony - which is why such provisions are added to statutes by their supporters. At the same time, requiring judges to state their reasoning does cause thinking judges to better evaluate the issues before them.
New Family Code section 3042 requires the court to provide an alternative means of obtaining information regarding the child's preferences if it does not allow a child 14 or older to testify as a witness.
Either minor's counsel, an evaluator, investigators, or mediators who provide custody recommendations to the court, must indicate to the Judge whether the child wishes to address the court - and the judge is also required to ask this question. Either parent's attorney may also make that representation to the Court, which then triggers the issue.
According to its author, Assemblywoman Fiona Ma, current law was not sufficient because children over a certain age who had the capacity to express important preferences were routinely not allowed to testify under former section 3042. Hence, she believed that children's wishes were ignored except through the voices of third party evaluators or minor's counsel, and even then that they were not given proper weight. In my experience this was factually true. There is a longstanding judicial antipathy towards the unseemingless of testimony from children, questions about the reliability of such testim
The statute does not preclude younger children from testifying and so the law is essentially unchanged as to them - in their cases the court is not required to make findings on the record if it does not permit testimony.
The Bill's author also stated that nothing in the statute will require a child to express his or her preference. Instead she claims that section 3042 is strictly intended to provide a better avenue for participation in the proceedings and not to pressure children to express their wishes against their will. By the way, Assemblywoman Ma also sponsored Assembly Bill 102 of 2007, which permitted parties to registered domestic partnerships to change their names to the last name of their new legal partner, which I support.
Accordingly, the Bill directs the California Judicial Council to promulgate standards and guidelines and rules and procedures for the examination of child witnesses, and to suggest alternate and less intrusive methods for obtaining the information about preferences beyond directly questioning them in court.
Hence, at least as to your children's custody preferences, depending upon their ages, after January 1, 2012, you will likely be able to have the judge listen to them, particularly since there will be a period of confusion, especially in smaller jurisdictions, about how to manage child testimony for months to come.
I beg you to be careful with the power this new law gives custodial parents, which I fear if misused may become an invitation and an opportunity to increase conflictual and alienating behaviors rather than a simple and useful means of allowing children a voice in the proceedings.
T.W. Arnold, III, CFLS
December 1, 2010
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| December 01, 2010 |
| What STANDARDS Are JUDGES Likely to APPLY When A REQUEST FOR CHILD TESTIMONY Is Made? |
| Posted By Thurman Arnold |
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Q. I have heard that children will be able to decide which parent they want to live with in 2011, is this true?
A. No. However, at certain ages their imput may become more important to courts in deciding the question effective 1/1/2012.
Revised Family Code section 3042, effective January 1, 2011 but not implemented until January 1, 2012, directs trial courts to allow testimony from children who are aged 14 years or more on issues relating to custody or visitation, unless the judge or family court commissioner makes a finding on the record that doing so would not be in the child's best interest. In the event a court makes such a finding, it is nonetheless required to "provide an alternate means of obtaining input from the child." This statute is on its face intended to allow children to express preferences about their relationships with their parents, whether they be in terms of primary residences or visitations, but it opens the door to much more. Some judges will struggle to limit its application, for some reasons.
I predict that it is going to become a time-consuming, destructive mainstay in the diet of family law courts and custody attorneys or that judges will develop a method of nullifying the intent of the statute. As an experienced custody and family law attorney, I believe it is a really bad idea. But for now the reality is that children will be testifying in court like never before. How will family law courts deal with this legislative mandate? I suspect quite reluctantly since family judges see the problem more clearly than our legislators apparently do.
Judicial policy is likely to require, as a threshold question, a balancing of a number of concerns. These include the need to protect the child from perceived harm from the act and consequences of testifying, the new statutory obligation to consider children's expressed wishes and their supposed desire to express those wishes (as probably urged by the proponent parent), and the probative value of the child's input in deciding the issuers at hand (this probative value is implicit in the statute). I think most judges will want to avoid such testimony, but are going to have figure out reasons they can readily articulate why not to take the testimony in order to avoid reversals by appellate courts.
In arguing in favor or against introducing such testimony, you will want to be able to talk to the court about the following likely threshold judicial concerns:
- 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.
Thurman Arnold, III, CFLS*
*State Bar of California, Board of Legal Specialization
12/2/2010
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| September 20, 2010 |
| How Can I Be Sure a Court Will Enforce My AGREEMENT Reached With My Spouse OUT OF COURT? |
| Posted By Thurman Arnold |
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Q. My wife and I have reached some agreements about support and property division in our dissolution proceedings. Neither of us have attorneys. I want to write something up that is enforceable. Is there anything I should know?
A. If a case has already been filed and so is "pending", and whether you have attorneys or not, if you and your wife reach an agreement on any issue outside of court and you want to be sure that she can't back out of it before it is signed by a Judge and becomes an order, it is essential that you make reference to California Code of Civil Procedure section 664.6 in any written agreement you prepare.
The terms of all types of agreements that you reach as an incident to pending family law litigation must be independently approved by a court commissioner or judge. Usually these judicial officers just want to know that both parties are in agreement, and will not substitute their opinions for what you've decided, but not always. Particularly where children are involved, judges have an independent obligation to ensure that a child's best interests are protected. Still, judges will not usually reject your agreements - however, if one side backs out before the agreement becomes an order or a judgment, when children are involved a court may be more inclined to refuse to enter the disputed order than it would be if the issues involved property division, debts, or spousal support.
Often times people reach agreements in the hallway outside the courtroom, and then come into court and tell the judge what their agreement is - once that agreement is 'on the record', most courts are going to enforce it. Those agreements often require, however, some further writing like a stipulation and it when the stipulation is presented days or weeks later that the other party may have changed their mind. You now need to enforce that agreement, possibly by a Motion under CCP 664.6.
The problem also arises when cases get settled away from court, during the lunch break, or when the agreement doesn't get put on the record for any number of reasons. Maybe they won't sign some other document that the signed agreement contemplated or obligated them to comply with.
Any agreement you reach with anyone is a contract if certain conditions are met. Unfortunately, failure to abide by such promises may only give rise to a claim for breach of contract under civil law - which is pretty worthless in family law proceedings because you have to file an independent civil action to enforce them, which takes months or years to resolve.
You want enforceable orders. These are something more than mere verbal or written promises, or contracts that haven't ripened into Orders or Judgments.
C.C.P. section 664.6 is extremely important and useful for enforcing written agreements, because it gives the Court the power to enforce the terms of those the agreements as court orders, and to interpret them later if there is disagreement about what was in fact agreed to.
However, in order for 664.6 to work for you, you need to either reference the statute in the document that is signed or in an oral statement on the record. You don't need to mention the section specifically, but I recommend that the following language should appear in the agreement or court transcript: "The parties request the Court to retain jurisdiction to enforce the terms of the settlement agreement per CCP 664.6" is the optimal language to use.
Thurman Arnold
http://www.DesertDivorceandFamilyLawyer.com
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| May 12, 2010 |
| Is there any way to request that the Judge RECONSIDER her rulings in my case? |
| Posted By Thurman Arnold |
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Q. I was in Court three days ago and the Judge ordered me to pay an amount in support that there is no way I can afford. The Judge averaged my earnings over the past 12 months, and then entered that information into the Dissomaster. She then told me how much I had to pay for child and spousal support. The problem is that my hours were drastically cut back by my employer 10 days before the hearing and what I have been earning is not what I will be earning. I was so nervous in the courtroom I didn't explain this change to the Judge. Is there anything I can do to get the Judge to reconsider this order?
A. There are two important procedures that you can use to try to get a rehearing or a reconsideration of a court's award or decision, a motion for reconsideration and an application for CCP § 473 relief. Each is tricky and they do not succeed too often. I know of no statistics, but my guess is that court's will reconsider and reverse or modify their earlier decisions less than 10% of the time. 473 relief is more commonly granted.
The first is called a Motion for Reconsideration. The California statute governing reconsideration motions is California Code of Civil Procedure section 1008. It has at least two important parts: a) it must be timely filed and b) it must be based upon new or different facts,
circumstances, or law than what was known or shown at the time the hearing took place.
The threshold requirement is timing: § 1008(a) states that the motion must be filed "within 10 days after service upon the party of written notice of entry of the order." Courts consider that the failure to timely file a motion to reconsider is jurisdictional - which means they don't have the power to even consider your request if you are too late.
A literal reading of this statute suggests that the 10 day clock doesn't start ticking until you receive a hard copy of the court's order or ruling (typically through the mail or sometimes by personal service), but this is generally not how judges view it. Typically a judge announces their decision in open court. In the case of a Dissomaster or other support calculation they may print it out and give each party or the attorney for each party a copy. A minute order will be written by the court clerk, and placed in the file. It usually goes out in the mail to both sides the same day.
Sometimes a party or attorney will be directed by the Court to prepare a formal order. That formal order is usually on a Judicial Council form. The losing side is customarily asked to review and approve it before it is submitted to the judge for signature, except that many courts do not require an attorney to get the approval of an unrepresented party first and so it may wind up just being prepared and approved by the drafting attorney alone. Once the order after hearing gets signed by the court, it is supposed to be served upon the other party but often through sloppy practices or oversight it is not.
What this means is that you cannot rely on written notice as triggering your obligation to get the reconsideration motion filed - and you definitely cannot sit back and think that your time is not running just because no written order has been received by you.
Where the Judge makes their ruling while you are present in court, in my experience, most courts start the time running from the date of hearing regardless whether written notice or a formal written order is to follow. An exception is where a judge takes the matter "under submission" and makes her decision later, when a decision or ruling is mailed.
Many judges believe you have been "served" with the decision when you hear it - and therefore that your time to file a motion for reconsideration begins to run from that moment. This means that the only safe practice is to file your reconsideration motion no later than 10 calendar days after the hearing (not counting the first day, and if the 10th day falls on a weekend or holiday, your time is extended to the next calendar day).
10 days is not a lot of time to put a Motion for Reconsideration together. It needs to include a Notice of Motion form, an application form which includes your detailed declaration, and it is a good idea to provide legal authorities.
Assuming you meet the deadline you will find that Judges don't like to be asked to reconsider their decisions except for really good reason, and do not appreciate parties that simply are unhappy with the outcome and want to take another shot at it. They apply the technical rules technically to avoid changing their rulings, which makes some sense in terms of court efficiency because in litigation one side is almost always unhappy with the outcome and would like to reargue the matter.
The second half of a motion for reconsideration requires you establish that you have discovered "new or different facts or law." The "new law" situation is rare and does not mean that you just discovered that you quoted the wrong legal authorities to the Court and so now have "new" ones to present; it is intended to cover situations where the law changes or is clarified by statute or case decision in a way that would caused the Court to make a different decision.
Another important ground for reconsideration motions is the Court's inherent power "to do equity" or correct its own mistakes.
These motions are complicated and this Blog is just to give you some familiarity with them. These are the points I want to leave you with at the moment:
- If you can, try to research CCP § 1008, including looking at some legal treatise or the reported appellate decisions that mention it
- New or different facts don't generally include things you forgot to mention, unless you have some really credible explanation of why you forgot
- You must explain to the Court what you learned, how and when you learned it, why you didn't learn it earlier, and why these new or different facts matter enough that the Court should render a different outcome. If the other party withheld facts that you became aware of only after the hearing, you need to describe your reasonable diligence in having attempted to first get all the facts
- New facts are not the same as different facts. Be specific
- Telling the judge you just think she was wrong is rarely helpful - judges know they will be wrong some of the time, and they are trained as much to just make a decision as to get it right (clearly they want to get it right). Most of us don't like being told we are wrong and that is rarely a useful persuasive tool. Instead, focus on the justice or injustice of the situation and be humble
- Explaining that you made a mistake without more is also risky, because lawyers and parties do make mistakes in presenting their cases but the law favors finality in decision-making. Your mistake needs to have been a reasonable one.
- Always consider combining your reconsideration request with a request for relief under Code of Civil Procedure § 473, which is a very important statute that covers relief from orders or judgments that result from your inadvertence, surprise, mistake, or reasonable neglect
In your situation the question will be: If you knew 10 days before the hearing that your time had been cut back, why didn't you mention it? If you did mention it, then the Court considered your evidence and ruled against you, so this would not be new information.
Also, how different would the outcome have been if the Court had considered or known of the cut backs in your work? For instance, if those cut backs are partial and your income is 15% less than the Court supposed, this may not seem so important to the Judge that she thinks she needs to correct the unfairness of the result. If it is 40% less, she might. There are no hard and fast rules that can be applied with consistency.
It is quite common for clients to wind up hiring attorneys after they attempted to handle their case on their own, and it blew up at the hearing, and now they need desperately to get more or better information in front of the judge. It is very difficult to "un-ring the bell."
When these things happen they are a good lesson of why the adversarial court process is to be avoided whenever possible, and of the importance of finding and listening to a competent lawyer early on in your case.
Thurman W. Arnold
http://www.ThurmanArnold.com |
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| May 10, 2010 |
| What does it mean that a judge has ordered a 730 EVALUATION in my custody case? |
| Posted By Thurman Arnold |
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Q. My ex wife and I are fighting over custody of our three children. The judge decided to appoint a psychologist to interview us all. How does this affect me and my case?
A. In high conflict cases where two sides have entrenched and opposing views about what is in the best interests of their children in terms of custody and visitation, California Evidence Code section 730 provides judges the option of appointing an expert witness to investigate the matter and report to the Court. This is often referred to as a forensic evaluation but in California we typically call them "730 evaluations."
What this means for you is that your family is likely in trouble, since these custody "evals" only are necessary where parents are failing to proactively resolve their parenting issues. They can be quite expensive in every way. I describe the process here in part to help encourage you avoid it. Still, there are times when it can lead to a lessening of conflict and it may be inevitable in move away situations.
Forensic evaluations can be used in a number of other settings as well, including valuing businesses or real estate. It is extremely common in move away cases and in fact a strong argument can be made that to allow a parent to relocate with minor children in the absence of such a report (if it is requested) violates the due process rights of the non-moving parent [In re Marriage of McGinnis (1992) 7 Cal.App.4th 473, 9 Cal.Rptr. 2d 182].
In your situation the Court has likely appointed a Psychologist or Marriage and Family Therapist whose work is already known to the Court because that person is on a panel the Court uses, or possibly because one or both lawyers have worked with the expert and either recommended him or her to the Court. Often the parties' lawyers will agree upon this third person.
Reliable evaluators are not hired guns for either side. However, like everyone else they can have their own biases. To the extent that you can, it is always a good idea to get as much information as possible about a potential evaluator before a selection is made. Courts generally don't impose someone on the parties where one of them objects to that person, but in smaller communities there may be fewer options in terms of qualified evaluators.
It can be very difficult for a judge to determine the truth of claims between family law litigants, what their underlying motives are, whether there is some mental health or substance abuse undercurrent, and whether one parent is more likely than the other to foster an ongoing relationship between the other parent and their children. Courts don't have the time or resources to do much more than call balls and strikes based upon witness declarations or live testimony. Therapists and psychologists are able to spend time interviewing parents and sometimes have them complete psychological testing, they meet children, talk to teachers, visiting homes, check with therapists who are seeing family members, and also interview significant others, new spouses, and other children in blended families. A much more reliable picture may emerge than that which comes from the parties' own descriptions of themselves, their children, and the other parent.
These custody evaluations can be quite expensive, typically starting at about $2,500. They seem to average between $4,000 and $6,000, but the costs skyrocket with the number of people other than the parents themselves (often called 'collaterals') whose input is required.
It typically takes at least three months for an expert psychologist or MFT to complete all the necessary interviews and write a detailed report. In my experience the time frame is closer to four months. This report is then submitted to the attorneys and to the Court.
Most courts require this report to be submitted at least 10 days prior to a hearing, so that both sides have ample time to review it. If you are involved in a custody dispute and you or your attorney receive the report late, if you disagree with its recommendations you may want to object that you have not had sufficient time if you want a continuance; otherwise, the Court may adopt the recommendations at that hearing.
In almost all cases where a 730 report has been completed, either side may request that an evidentiary hearing take place with live testimony and the ability to examine and cross-examine witnesses - including the custody evaluator whose recommendations are being considered. Depending upon the urgency of the family's issues and the Court's availability, these hearings may not be set for weeks or months.
In addition, if you feel that the evaluator failed to adequately investigate the case, or did not meet the standards of practice for such evaluations, you may want to consider hiring your own Evidence Code § 733 expert to advise you or your attorney on how to point out the shortcomings to the Court. This can be an expensive, but sometimes useful, way to challenge findings that you do not agree with. The usefulness of 733 evaluators is limited by the fact they do not get to perform a second evaluation (for instance, they rarely meet with the other party), and without conducting full interviews with all relevant persons they may be ethically bound not to render an opinion and certainly their views won't carry the same weight with a judge as the full evaluator. This is not to imply, however, that your children's interests are even your own interests are served by attacking an evaluator's report just because you don't like portions of it.
I will write more on this topic but want to leave you with this thought: Contested custody cases will damage your children, guaranteed. I urge you to consider mediating your custody differences instead, either by using a qualified mediator or a mental health professional.
Attorney T.W. Arnold III
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| April 14, 2010 |
| How Do I Get the Court to Order My Husband to be HAIR FOLLICLE tested? |
| Posted By Thurman Arnold |
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Q. I know my ex-husband uses drugs and I fear for the safety of our children. We are having a custody dispute. Is it possible to have him give a hair follicle sample for drug testing? How do I get a court order for drug testing?
A. It is not possible in California to force another parent or custodian of minor children to take a hair follicle test for drugs or alcohol absent their agreement to do so.
Family Code section 3041.5 is the direct authority for a court's ability to order drug testing. However, it contains an important limitation: If substance abuse testing is ordered by the court, the testing shall be performed in conformance with procedures and standards established by the United States Department of Health and Human Services for drug testing of federal employees. These procedures and standards do not presently include hair follicle testing and so a Court cannot order it over a party's objection. As a practical matter, California Family Courts order urine testing. The effectiveness of urine testing is limited because traces of different substances remain in body for differing amounts of time - traces of drugs remain in hair much longer.
However, hair follicle testing will be ordered where both parties agree or stipulate to it. This is more common that you might expect.
Sometimes this occurs at a court hearing where the Judge turns to each party and says something like 'Mr. Jones, would you be willing to take a hair follicle test: More often the attorney for the accusing party will say something like "your Honor, we are hoping that Mr. Jones will take a hair follicle test so we can put this issue to rest." The Court will turn to Mr. Jones and ask him if he will agree. 7 times out of 10, in my experience, Mr. Jones will say "sure your Honor, I have nothing to hide and she is making this all up."
Why would Mr. Jones agree to do this, when the Court otherwise is powerless to order it? Mr. Jones may not know his legal rights. Mr. Jones may have read on the internet that he can mask his substance abuse and beat the drug testing by using products he can buy on the web or at a health food store. Mr. Jones may have friends who said they beat the test. Mr. Jones may just feel like if he doesn't agree, he looks guilty. Mr. Jones may have recently cut his hair short or shaved his head - which is a good reason to ask the Court order that Mr. Jones not visit a barber until the hair sample is taken (hair samples can be taken from various other body areas). Mr. Jones may be himself in denial and so might lie easily and from habit.
And, Mr. Jones may think that his hair sample will come back clean because he is not "using" or he used so long ago the drug test will be negative - and he may or may not be right on this point. Traces of drugs may remain in the hair for up to six months. Some Valium to help one sleep taken 3 months ago may be forgotten.
Its a really bad idea to agree to hair follicle testing unless you are absolutely convinced there could be no traces of drugs in your body.
If you use drugs or abuse alcohol, you need to tell your attorney the truth of your situation; most attorneys want to help you overcome that problem early on in a case by directing you to recovery resources and help. Custody disputes actually present an opportunity for people to deal with their addictions (the same ones that may have lead to the breakup).
I once had a client who insisted her husband was using cocaine regularly, but she claimed she never used it. In her declaration we set forth much evidence of his continued using in excruciating detail. He admitted to having had used in the past, but said he had stopped a few months before.
At our hearing the Court asked both parents if they would agree to take a hair follicle test. Having adamantly stated under penalty of perjury that she never used, my client agreed and I allowed her to because she had told me (in answer to repeated direct questions to her first) that she never used cocaine - even though the Court would not have otherwise ordered it.
To my amazement her drug test results came back "dirty" for cocaine, as did her husband's. He now appeared to have been truthful, and she obviously had lied under oath. When I asked what she was thinking her answer was "oh, I used it on my birthday three months ago and was sure that that one time would not show up." The facts turned out to be that she knew all about his drug use because she had used alongside him.
The family judge was really unhappy with her. Because she lied to the Court, she lost all advantage in the custody proceedings and the judge viewed her as untrustworthy from that day forward. And so did I. This also adversely affected the amount of child and spousal support she received. Her husband ended up looking like the good guy, although I suspect he continued to use. Hair follicle tests don't indicate the dates of use, but merely that someone used at some time during some period.
If you have been using drugs, don't agree to a hair follicle test unless you are prepared to be completely honest.
It is possible to get a confidential hair follicle test from an independent laboratory before you write a declaration or go to a hearing, and then present your clean test to the judge at that hearing. If you find the test is positive for drugs, you don't need to share it with the Court or anyone else. But in that situation an ethical attorney will not let you make false statements either. You don't need to volunteer certain evidence, but once you make a statement it better be true.
By the way, I will not tolerate lying by my clients in my family law practice. Ethical lawyers will not aid and abet a client in making false or misleading statements.
In my experience there is always a positive solution presented by bad facts when you are truthful. With drug abuse situations, one solution is a commitment to becoming clean and sober. Judges appreciate people telling the truth who are taking steps to overcome these sorts of challenges.
Thurman W. Arnold III
http://www.ThurmanArnold.com
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| April 14, 2010 |
| Will the Court DRUG TEST My Wife? |
| Posted By Thurman Arnold |
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Q. How do I get a Court Order for drug testing my wife? I know she is using and I fear she is a danger to our son.
A. Your argument for drug and alcohol testing of parents or others having custody or visitation with children is in California is found in Family Code section 3041.5. The statute is only five years old, and before it enactment the only practical way to get drug testing was by the other party's agreement.
It is possible to convince a family court that the other parent should be tested for drugs or alcohol where you present sufficient evidence that there "is the habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol by the parent, legal custodian, person seeking guardianship, or person seeking visitation in a guardianship." FC section 3041.5(a).
This evidence includes but is not limited to proof that the other person has been convicted in the past five years of the illegal use or possession of a controlled substance.
The other important statute you need to cite to the Court is Family Code section 3011(d), which speaks to the requirement in determining what custody and visitation is in the best interests of children courts must consider evidence of the habitual use of controlled substances (non-prescription or otherwise) or alcohol - but first you must submit "independent corroboration".
In my experience what often happens when drug allegations are made is that Family Judges prefer to get the parties to agree to drug testing and only order it when they will not (or when recommended by family court services or a mental health professional). If the parties will not agree, judges may order the testing as long as there is some corroboration that a potential drug issue exists. I am always amazed that people who are using (who are "dirty" as we say) will agree to test when they may not need to because there is insufficient independent proof of the use of drugs.
Please see my blog on hair follicle testing.
TWA
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| April 08, 2010 |
| I've heard that CHILDREN can state their PREFERENCE at 13.... |
| Posted By Thurman Arnold |
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Q. I've heard that children can state their preference at age 13, is this true?
[NOTE: THIS BLOG CONTENT IS LARGELY SUPERSEDED BY REVISED FAMILY CODE SECTION 3042 WHICH TAKES EFFECT 1/1/11 - T.W. Arnold, 12/3/10]
A. Not as you pose the question. This is what Family Code section 3042 says:
"Wishes of child to be given due weight; Preclusion of calling of child as witness
(a) If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to the wishes of the child in making an order granting or modifying custody.
(b) ..., the court shall control the examination of the child witness so as to protect the best interests of the child. The court may preclude the calling of the child as a witness where the best interests of the child so dictate and may provide alternative means of obtaining information regarding the child's preferences."
The threshold question is always going to be whether the child is of a sufficient age and capacity to reason to form an intelligent preference and there is no bright line rule or specific age on the subject. One can make generalizations for instance that some children nearing the age of 12 or 13 or 14 have a sufficient capacity, but that is not automatically assumed. It depends on each child. You can imagine that the child's opinion of their own capacity to reason is not determinative, nor is your opinion. Children may be subject to conditions or "disorders" that affect the characterization.
Commonly where a preference must be expressed, it comes through the medium of a mediator, the child's therapist, or a forensic therapist or psychologist. Most judges are extremely reluctant to take testimony from a child, even in chambers, especially on routine matters like preferences (as opposed to situations where a child is alleged to be a victim of some form of abuse and so may need to be questioned). In Indio, the family court mediators will often meet with children upon request. There always remains a fear that one child or the other or both is actively coaching the child - another reason why child's preferences as expressed should be given "due weight."
So, my advice to you is this: Consider what you propose carefully. Try to work through it with the other parent. Attempt to understand the root causes of a child's stated preference, and whether they are independently reasonable - or even true, since of course your son loves you and may be reluctant to leave you at the end of the summer.
And, certainly, where objective facts exist that strongly argue for a change of custody, the child's preference may tip the scales in one direction or the other.
Thurman Arnold III
4/8/10 |
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| April 08, 2010 |
| How do COURTS decide to award JOINT CUSTODY? |
| Posted By Thurman Arnold |
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Q. How do courts decide whether to award joint custody?
A. Family Code section 3010 provides that a mother and a father "are equally entitled to the custody of the child."
However, Family Code section 3020 sets forth the California legislative declaration that the chief concern of the State in with regard to custody issues is the "best interests" of the minor children. Lawyer's and judges refer to this as the "BIC" (best interests of child) standard. As a matter of public policy, BIC always trumps parental rights and interests; of course, BIC is a moving target. Family Code section 3011 sets forth a non-exhaustive list of factors that bear upon the BIC.
Section 3020 is an extremely important statute nonetheless, because it also expresses California public policy to (a) "assure the health, safety, and welfare of children" and (b) to "assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except where the contact would not be in best interest of the child, as provided in Section 3011."
Here it is important to comment that when a court makes a custody determination, it is required "upon the request of either party," to issue a statement of the decision explaining the factual and legal basis for its findings. Family Code section 3022.3.
So, the court must make a decision, when parents cannot agree, based upon the evidence of what is in the child's best interest. Along these lines, there are certain presumptions that also apply which will affect the outcome of the BIC determination. Examples include a history of domestic violence by either party (Family Code section 3044) or habitual drug or alcohol abuse (FC section 3011(d)). In those situations the Court must actually state why it granted joint custody to a parent who is guilty of abuse, or is a continuing substance abuser, and those reasons may be hard to find.
Thurman W. Arnold III
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| March 06, 2010 |
| What does a VOLUNTARY DECLARATION OF PATERNITY (VDOP) do in California? |
| Posted By Thurman Arnold |
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Q. My ex girlfriend gave birth to our son three years ago. I was at the hospital with her, and signed a document they handed me that said I was the father. She and I were never married. We lived together for another year, but then split up. For six months, since I got a new girlfriend, the ex has refused to let me see our son. What can I do?
A. This is a common situation. We always know who the mother of a child is, but it isn't always certain who the father is. The law has developed ways of dealing with this, keeping in mind it is the policy of the state to try to find legal fathers for children so that they, and not the taxpayers, have the burden of supporting that child.
Under the law, when a woman gives birth to a child during a marriage there is a legal presumption that he is the biological father if certain conditions are met. There are a number of statutory ways of establishing parentage since there are a number of different situations where children are conceived and born. Here I only write about situations where there was no marriage.
Establishing you are the father is a precondition to establishing two very important things: Your right to share the custody and visitation of the child and your right to receive child support, or your obligation to pay it.
Family Code section 7611 establishes this presumption where
1) the man "and the child's natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated, ... or after a judgment of [legal] separation is entered by a court"; or
2) before the birth, he and the mother attempted to marry each other but where the marriage was for some reason invalid, if the child is born during the attempted marriage or within 300 days after it termination OR if the attempted marriage is invalid without a court order, the child is born within 300 days after the ending of cohabitation; or
3) After the birth, he and the mother marry or attempt to marry each other but the marriage could be declared or is declared invalid, where (a) with the father's consent is named on the birth certificate or (b) he is obligated to support the child under a written voluntary promise or under a court order; or
4) If the man receives the child into his home and openly holds him out as his natural child.
Since you don't mention a marriage or attempted marriage, only the fourth category may apply to you.
Family Code sections 7570 to 7577 govern the establishment of paternity by voluntary declaration. This is called a VDOP. It is really for establishing paternity between a child and unmarried persons.
Since 1995, hospitals in California have been required to have on hand this declaration and informational documents about establishing paternity by this method. Hospitals are required by law to "provide [these documents] to the natural mother and [to] attempt to provide, at the place of birth, to the man identified by the natural mother as the natural father...." Family Code section 7571(a). Family Code section 7572 sets forth what the informational materials of the legal effects of signing the VDOP, including the rights that a father may be assuming and those that he is giving up (like limitations on his ability to dispute parentage later). Hospitals are then required to submit these documents to the California State Department of Child Support Services [DCSS].
Family Code section 7573 provides that, with certain qualifications, once this VDOP has been submitted to DCSS, the VDOP "shall establish paternity of the child and shall have the same force and effect as a judgment for paternity issued by a court.... The voluntary declaration of paternity shall be recognized as a basis for the establishment of an order for child custody, visitation, or child support."
Family Code section 7574 sets forth the minimum requirements of what the VDOP must say to the father.
The VDOP may only be rescinded (reversed) by either parent by filing a recission form with DCSS within 60 days of its date of execution unless a court has already entered orders for support or custody based upon it. Family Code section 7575.
Nonetheless, if a challenge is made within certain time frames to the VDOP after the recission period is passed, Family Code section 7575(b)(1) may permit the Court to set the judgment it has created aside "if the court finds that the conclusions of all the experts based upon the results of genetic tests ... are that the man ... is not the father," UNLESS the court finds that denial of an action to set aside the VDOP is not in the best interest of the child. Take a look at subsection (b)(1) to get a sense of what those considerations include.
Family Code effectively sets a 2 year statute of limitations for filing a motion with a court to set aside the VDOP; otherwise it cannot be set aside. Genetic testing must prove the supposed father is in fact not the bio dad.
In your case the VDOP cannot be set aside since it was signed more than 2 years ago. Based upon it, you are the legal father. If you need the court's assistance to enjoy visitation rights with your son, you need to file and serve a Paternity action, attach the VDOP (which you can get from DCSS), and file a separation OSC or motion to have custody and visitation rights determined. The case then becomes much like any other custody dispute.
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| February 16, 2010 |
| OVERVIEW OF CUSTODY APPLICATIONS AND PROCEDURES in California |
| Posted By Thurman Arnold |
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There are numerous types of cases that may involve custody determinations between parents and even nonparents (although nonparents typically need to be joined into the action since they are not automatically parties to their own child's divorce, for instance). These commonly include divorce proceedings, legal separations, paternity actions, and domestic violence applications. Guardianships involve custody but they are not covered here.
California Courts have jurisdiction to issue initial temporary custody awards, permanent custody awards, and to modify existing orders after a final custody award has been entered.
Whenever custody is on the table, visitation is as well. Typically child support is also at issue, although in order for a court to consider any request the moving party (the party who filed first) sets "the menu" for what the court can consider and make decisions about. The responding party does not set the menu, and must file their own separate application for orders to bring in new matters. It is imperative that a moving party (the party making requests) check the correct boxes on the
FL-310 and the Notice of Motion or OSC cover sheet. The reason for this is to ensure the other party receives 'due process,' meaning that they have fair notice of what the hearing is about and a fair opportunity to respond and to provide all relevant information in opposition.
Otherwise, if only the custody boxes are checked then any given court may refuse to discuss finances. Different judges do it differently, but it is important for you to do it right.
As a practical matter, in order to file for custody orders some underlying action must be filed. This could include a DCSS or other governmental application although you cannot control when and if that is filed.
Once the underlying action is filed, or together with it, a parent seeking orders may file an Order to Show Cause or Notice of Motion. If you represent yourself, you can obtain complete forms packets from your local court clerk. That application must be accompanied by the
FL-310 which tells the Court what it is you want and why you want it.
While you can handwrite the evidence you want to give the court on the FL-310, this is not a good idea. Better to set your information forth on the attachments sheets. Even better to type it out and attach it.
If you are seeking child support (or spousal support) orders, you must also submit a current Income and Expense Declaration which is California Judicial Council form
which is
Form FL-150. It is important that answer all the questions on that form and provide back up so you don't get scolded by a judge or have to return to court another day.
These papers must all be served on the opposing party, in person if this is the first filing and they have not yet responded in the action (notice of ex parte applications can be given orally, but there must be a proper personal services thereafter).
Be sure that you serve all the papers you want the court to consider. Do not expect that you can show up in court with new matters and evidence and just hand them to the judge. Procedural due process requires the other side get everything in time to respond. In addition, many judges will just refuse to consider untimely pleadings or defectively served documents - although, if for reasons beyond you control this happens to you (something new happened) - request a continuance at your first hearing so the other party gets their time to respond.
I address the actual issues regarding temporary custody and ex parte applications, permanent custody, and modification of custody in another blog. I will link back when those articles are done.
In the meantime, use our search engine at the top of every page to locate what you need to know about your family case in an efficient manner.
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| August 04, 2009 |
| My girlfriend is due to have a baby next month. I am not sure if it mine. What do I do? |
| Posted By Thurman W. Arnold, III |
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Q. My girlfriend is having our baby in September, but I don't know if I am the dad. I really care about her but a friend told me that I need to be careful because if I go to the hospital with her, I have to pay support no matter what. Is this true? What is she files a paternity action?
Keith S.
Keith:
California law encourages hospitals to get a signed Voluntary Declaration of Paternity ("VDOP") from the male who appears to be a parent at a time when a mother gives birth. This is something that is presented to
proud fathers at the time of a
child's birth, along with information about
legal obligations, and that they are asked to sign. There may be a lot of guilt and confusion going on at this time. Hopefully there is simply pride.
The public policy is that the State wants to identify biological fathers early on, and to encourage them to step up to the plate both financially and in terms of providing emotional parenting to children. It is also assumed the male who shows up for the birth is most likely the bio dad, and that the parties know it. Obviously, it is not always true and sometimes a man does not turn out to be the actual father. Sometimes he believes he is, and sometimes he is told he is.
Children need their biological parents; this is
critically important. Any bio parent who shirks his responsibility out of financial or emotional selfishness lacks integrity, and their decision has serious consequences on other lives that a true parent will recognize and regret one day, unless they are a sociopath or lack any conscience.
BUT the signing of a VDOP has serious important legal consequences. It is equivalent to a
Judgment of Paternity, which may only be set aside for a limited time. While children deserve parents, whether a man that has sex with a mother before a child is born should be determined based only upon that, and their sense of moral responsibility, and therefore to be adjudged a responsible parent also raises integrity and fairness questions in favor of the alleged parent. California law on this subject means well, and may statistically result in the proper outcome more times than not, in my view innocent men who turn out not to be biological parents have rights too. The law says so too, and the question becomes whether you or not you waive your rights to object in a timely fashion.
So, please understand, if you sign a voluntary declaration of paternity next month, you may be adjudicated the legal father of this child regardless whether you are the bio parent. That has privileges and it has burdens. You will have the privilege (assuming the mother does not challenge you before two years after the child's birth) of being a "legal parent" whatever the DNA turns out to be, including rights to custody, visitation, companionship, etc. You will also have the legal financial burdens which I describe under my
support obligations FAQ's. For a long, long time, and even possibly forever.
Family Code section 7573 establishes the effect of a VDOP.
Section 7575 allows you to rescind that declaration but only if you do so within 60 days after birth of the child. Otherwise, after birth, you have a 2 year window to seek
paternity
DNA testing and an order that you are not, in fact, the
bio-dad. The court has discretion to find you are the de facto parent even if you are not bio-dad, however, so even if DNA is conclusive and you are not otherwise the father - absent another man ready, willing, and able to step up, you may find yourself stuck.
These are weighty matters. In my experience, and in most judge's experiences, woman know who the dad is. Still, there are many reasons why a mother might lie - even including trying to insure that some bad person is never adjudicated the dad. I would never judge your girlfriend and have no opinion on what your status truly is.
So, do what your heart tells you you are the dad, fine. But consider getting DNA testing immediately before you, or the child and you, form any attachments and that way there will never be any question - nor any need to hire me to dispute paternity!
Best of luck and, hopefully, congratulations!
TWA |
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