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Attorney Notes: CFLR Seminar 2008
1. Hague Convention [International Child Abduction Relief Act]
- Rise in international marriages
- Rise in employee relocation
- Elements to be under the convention
- Child must be under 16 years old [15 years old or younger]
- Child’s habitual place of residence is USA or foreign country
- Other parent had lawful rights of custody when removal occurred
- Must be signatory of Hague convention
- Countries which are members: Argentina; Australia; Austria; Belgium; Bosnia & Herzegovina; Brazil, Bulgaria; Canada; Chile; China [Hong Kong and Macau only]; Croatia; Cyprus; Czech Republic; Denmark; Dominican Republic; El Salvador; Estonia; Finland; France; Germany; Greece; Hungary; Iceland; Ireland; Israel; Italy; Latvia; Lithuania; Luxembourg; Macedonia; Malta; Peru; Serbia; Slovak Republic; Slovenia; South Africa; Spain; Sweden, Switzerland; Turkey; United Kingdom [including Bermuda, Cayman Islands, Falkland Islands, Ilse of Man and Montserrat]; Uruguay; Venezuela and Zimbabwe
- Exceptions to elements
- Consent or acquiesce of parent
- One year statute of limitations
- Grave risk of harm if returned
- Violation of fundamental rights in country if returned
- Child objects if child is 13 years old or older but less than 16 years old
- Habitual residence test
- Settled intent to abandon prior residence
- Change of geography with sufficient time
- Wrongful removal test
- Did removal take pace
- Was child habitual resident prior to removal
- Was removal breach of rights under law
- Was other parent exercising custody rights at time of removal
- Can file in state or federal court
- If law which applies is in other country, associate attorney from that country for knowledge of laws in home country
- Court looks to six months of consecutive residence= home state
- If not home state, look to significant connections
- Expert opinion
- Evidence Code Section 730 expert appointment
- No ex parte communication without stipulation in writing
- Must have retainer agreement with expert
- Parent liability for acts of minor child
- Civil Code Section 1714.1(a)
- Parent responsible for up to $25,000 for child liability
- Civil Code Section 1714.1(a)
- Stipulations between parties
- Family Law Code Section 306
- Court must adopt stipulation of parties in absence of exceptional circumstances
- Material terms explicitly defined
- Parties questioned regarding understanding of the stipulation
- Parties acknowledge understanding
- Family Law Code Section 306
- Minor Counsel
- Family Law Code Section 3150
- California Rules of Court Sections 5.240-5.242
- Each child requires separate counsel
- California Rules of Court Sections 5.240-5.242
- Family Law Code Section 3150
- Drug Tests
- Family Law Code Section 3041.5 extended
- Court may order drug and/or alcohol testing if proof of habitual, frequent or continual illegal use of controlled substances and/or alcohol
- Evidence may include conviction in last five years
- Least intrusive method= urine test which is federal standard
- Right to challenge positive test
- Positive test alone not grounds for adverse decision
- Standard is best interests
- Family Law Code Section 3041.5 extended
- Home schooling
- If both parents agree, and in best interests, Court will grant
- If both parents do not agree, Court will make decision
- Recent case of Rachel L
- Private school
- Instructed by credentialed tutor
- Family Law Code Section 3044
- Rebuttable presumption regarding custody and visitation
- TRO
- Easier to obtain after Nakamura v Parker
- Allegations facially adequate must grant
- Mandatory judicial council revised rules and forms
- DV-260: confidential CLETS information
- DV-100: request for order
- DV 110: tro and notice of hearing
- DV 120: answer to tro
- DV-130: restraining order after hearing
- CR-162: order to surrender firearms in DV case
- Collaborative law
- Permissible types of representation
- Four way agreement
- Limited representation
- No inherent conflict
- Informed client consent
- Permissible types of representation
- Enforcement by Code of Civil Procedure Section 664.6
- Oral
- Written
- Must contain material terms with no ambiguity
- Mediation confidentiality
- Evidence Code Section 1123
- Evidence Code Section 1118
- Evidence Code Section 1152
- Child support non discharge able
- Spousal support non discharge able
- Property division and marital settlement agreement will be followed
- Attorney fees discharge able
- When objecting, state “objection” and then grounds for objection
- No declarations for trial
- All evidence code and code of civil procedure rules will be followed in family law cases
- Possibility that trial by jury will be soon coming
- Present all evidence at trial both by oral testimony and documents
- Do not use Reifler for trial unless stipulation
- Object to third party hearsay or foundation or expert opinion or other pertinent objections in declarations by parties or third parties
- Code of Civil Procedure Section 2009
- Use oral testimony for Court to see credibility and demeanor on direct as well as cross
- Declarations
- Just use admissible facts
- Write declaration in “client voice”
- Motion to compel
- Must bring within 60 days of sending subpoena if no compliance
- Very technical and sanctions if not done correctly
- Finding and orders after hearing
- Prepare and serve and file proof of service as promptly as possible
- Do not file appeals unless appellate attorney
- 80% of all civil cases are affirmed on appeal
- Standards of appellate review
- Substantial evidence
- Abuse of discretion
- Must show prejudice and not simply be harmless error
- Cost benefit analysis of filing appeal versus gain if remanded and new trial
- File notice of appeal for client in pro per if absolutely necessary
- Code of Civil Procedure 662; 667 and 663 in lieu of motion for reconsideration
- Family Law Code Section 2337
- Many changes effective 1-1-08
- Favored under the law as in the past
- Court may impose any conditions which it believes are equitable in order to protect the other spouse’s property rights
- Conditions binding on requesting parties estate
- Strengthens hold harmless provisions
- Requires joinder of most retirement plans
- Must maintain existing health care coverage or ability to pay if coverage unavailable
- Transfer of interest in IRA
- Security interest or undertaking to protect other spouse’s rights
- Non probate transfers
- Many changes effective 1-1-08
- Can be appealed immediately
- Bifurcation of status
- Finalization of all issues before appeal is normal procedure
- Before bifurcated trial
- Stipulation to have trial court certify for appeal
- Motion court of appeal
- Family Law Rule of Court 5.180
- Agree to waive requirement of same Judge for bifurcated issues for remainder of case
- Court of Appeal stated not legally binding
- Procedures for when attorneys go on vacation
- Send notice of unavailability to opposing party and client
- Arrange for coverage attorney
- Have law office be involved
- Try to file proof of service of NOU since San Diego Clerk’s office will not file NOU
- Burden of receiving attorney of discovery
- Review discovery prior to sending to client or expert or any third party
- Return any documents inadvertently included which are confidential or protected by the attorney client privilege
- Resolve any disputes by agreement
- Seek court guidance if necessary
- Breach of fiduciary duty
- Family Law Code Section 721
- Family Law Code Section 1100(e)
- Family Law Code Section 2100c
- Family Law Code Section 2102(a)
- Family Law Code Section 2103
- Family Law Code Section 2104c
- Update SOAD as needed throughout the case
- Do not sell, contract or any other distribution without consent of other spouse
- Most significant when “in spouse” in control or business or management of community property assets
- Form 8332: release of dependency exemption and for tax credit
- Can be released for a specific period of time or “all future years”
- Keep copy in safe place
- Gillmore election
- Participant in plan eligible to retire and chooses not to
- Non participant spouse can ask for benefits now
- Advantages
- Payment now and do not have to wait for participant spouse to retire
- Disadvantages
- Income stream now so support for non participant spouse will be affected
- Freezes interest at level of date of election
- Federal uniform former spouse protection act
- Allows state to divide military pension plans
- Family Law Code Section 1041
- Non deductible as property division
- Use equalization language
- Advantages
- Purpose of civil contempt is to incentivize to comply with order and not punishment
- 35 counts or less only or right to jury trial as more than 180 days in jail
- Presumed Father
- Married during birth and/or conception
- Signed voluntary declaration of paternity
- Takes child into home and holds child out as his child
- Alleged Father
- All others
- Two parents to financially support
- Maintain “intact family units”
- Honor intention of people who put procreation process in effect
- Presumed parent is one who takes child into home and holds child out as their own
- Family Law Code Section 7645: set aside motions for paternity and DNA test
- Two years from date of birth
- Two years from date of default
- Over riding goal: financial support of children
- Highest priority
- If wealthy, more than just necessities
- Deviation from guideline motions as appropriate
- Spousal support modification motion
- Cannot consider adult child
- MSA
- Consider Gavron warning
- Include basis of income for spousal support calculations
- Family Law Code section 3651c
- No retroactive support modification pre date of filing motion
- Cannot settle arrear for less than owed except when disputed
- Question arrear
- Judgment ambiguous
- Accord and satisfaction
- Move away cases
- Wilson v Shea stands for using CS to set up trust fund for travel
- Post judgment modifications
- Code of Civil Procedure Section 215: “personal service”
- Juvenile court has no ability to make child support order
- Earning ability
- Vocational evaluation
- Reasonable rate of return on investment
- 5% rate of return
- Expert testimony
- Mandatory add ons for day care and health care reimbursement
- List thirty day period to provide proof of payment from date of service
- List thirty day period to provide payment
- Presumption property purchased during marriage is community property
- Inheritance not community property unless commingled or transmuted
- Gift not community property unless commingled or transmuted
- Property purchased by spouse with third party money for third party no community property
- Resulting trust= join third party immediately
- By operation of law
- Spouse is trustee with only duty to transfer asset to third party
- Use date of employment, date of marriage, date of separation and all facts in MSA
- Survivor Benefit Plan= very complicated and legal exposure
- QDRO Pros
- Retirement versus disability
- May be able to argue portion of disability: Smith
- Court must accommodate as much as possible
- Continuance
- Facilities
- Parties
- Witnesses
- Others with interest in outcome of case