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December 01, 2010
  Can My CHILDREN TESTIFY About Their PARENT PREFERENCE in Our Custody Case?
Posted By Thurman Arnold

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 unseemliness of testimony from children, and questions about its reliability.

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 conflicted 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

Continue reading "Can My CHILDREN TESTIFY About Their PARENT PREFERENCE in Our Custody Case?" »

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September 14, 2010
Posted By Thurman Arnold

Q. How is a family law real property lien used to enforce a support judgment?

A. An effective method for enforcing child and spousal support orders, and collecting what is owed you (plus legal interest at 10% sometimes going back years), is a real property lien. People often find themselves at the last moment surprised by the discovery that a former wife or husband, or other creditor, has liened a home, commerical property, or vacant investment lots. This is extremely unpleasant, particularly when a lender or buyer rightfully announces they cannot close the transaction unless and until a release from that creditor is obtained. This provides effective leverage for the people owed money.

Without some form of a property lien there generally exists few ways to ensure that third parties dealing with the debtor will ensure that unsecured debts owing you are paid. Support payments that are due, whether or not they are then in arrears, are simply nonsecured without more; businesses and individuals dealing with a debtor have no way of knowing they owe such money, and no legal duty to ensure the obligor pays it even if they did.

Property liens are like an insurance policy - even if the person who owes doesn't pay it off now, the lien will haunt the payor, with accruing interest, until she/he satisfies their legal duty to pay. Sometimes this happens years downstream - where, for instance, a person doesn't now own property in their name but one day wants to, does, or inherits. As between families, for instance, people don't do title searches but may gift title to a child, sibling, or parent. Once title goes into the obligor's name, who ever later receives title will end up owing the money if it is not paid. Much like a game of musical chairs.

There is a different remedy for those creditors that believe or find that their former spouse is hiding their interest in real property by titling it in someone else's name.

Abstracts of Judgment Are Effective For Enforcing Judgments

Real property liens are created by recording, with the county recorder's office for the county in which the other party lives or where you know, believe, or anticipate the other property may take title, certain legal documents: an Abstract of Judgment, a Notice of Support Judgment, a certified copy of the order or money judgment, or a federal Notice of Lien. Secured promissory notes that deal with property division equalizations are commonly used as well as a security to obtain payment of non-support obligation and are a form of lien although of a different variety that what is discussed here.

Once you have recorded the appropriate document with the recorder's office (not the court clerk's office, although that office often has to issue the required paperwork that gets recorded elsewhere), the (former) spouse or domestic partner who owes the money is prevented from transferring, selling, or refinancing real property within that county until the lien is extinguished by you.

This occurs because all American states have registries that serve as a data bank and clearing house showing who owns what real property. These records include a "chain of title" history for each such property since written recording began in that jurisdiction.

In order to sucessfully transfer title, refinance, or even purchase real property in California free of encumstrances and debts to a transferee (whether purchaser, lender, or gift recipient), some form of "title search" must be undertaken - in California usually by title companies. These are a species of insurance company that issues a policy to title transferees for a fee. They must do a thorough title search to determine who the legal owner of the property is and whether there are mortgages or other liens that the law requires be paid in full before a "clear title" can ben exchanged.

Since title companies in California are essentially insurance companies, they have a financial interest in not paying out claims for title policies they issued when real property liens were property recording and so lurking in the background.

Liens filed in one county do not attach to property located in a different county. They are only effective for the amount of matured installments due (not for future payments). But even if the underlying principal amount changes - as where the amount increases over time or deceases with partial playments - there is no need to record a new one.

However, when a liened party dies and if they own the residence as community property, or a joint tenant, with another person, like a new spouse or domestic partner, the lien is extinguished and property passes free and clear to the co-tenant.

Otherwise, liens are only extinguished by a satisfaction of judgment or release of judgment lien.

I always recommend to my clients who are owed past due amounts of support, or where there is a property equalization that needs to be enforced, that they obtain a recordable judgment or order from the Family Court and record it in every California county where the obligor resides, might reside, might inherit - and certainly where that individual owns titled real property. At the same time, there are other enforcement remedies that can be concurrently pursued.

I have seen many situations where years after a lien is recorded that a title company or real estate broker calls to ask where 'so and so' is in order that they may be contacted so that the lien may be satisfied by paying the money and interest that is owed.

Of course, these liens are only effective when someone holds title to real property. You will need to use another enforcement remedy if they live beneath the home ownership radar. Here is another highly detailed look at how to enforce divorce judgments and support orders.

TW Arnold

Continue reading "ENFORCING SUPPORT: What is a REAL PROPERTY LIEN?" »

February 16, 2010
Posted By Thurman Arnold

There are numerous types of situations 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.

What more information about child custody and visitation rights and disputes in California?

T.W. Arnold


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