California Family Law Attorney
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December 01, 2010
  New Family Code Section 3042 - Will It Serve to Accelerate the GENDER CUSTODY WARS?
Posted By Thurman W. Arnold, III, CFLS

Child Testimony Concerning Parental Preference

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


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March 06, 2010
  What does a VOLUNTARY DECLARATION OF PATERNITY (VDOP) do in California?
Posted By Thurman Arnold

Q. My ex girlfriend gave birth to our son three years ago. I was at the hospital and signed a document they handed me that said I was the father. We 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?

Robert, Lake Tahoe, CA


Establishing Who The Legal Father Is

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.

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."


VDOPs Can Be Rescinded Under Limited Conditions

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.

If you want to read more about paternity, visit us here!

Thurman Arnold


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