Attorney Notes: CFLR Seminar 2008

1. HAGUE CONVENTION
[INTERNATIONAL CHILD ABDUCTION RELIEF ACT]

  1. Rise in international marriages
  2. Rise in employee relocation
  3. Elements to be under the convention
    1. Child must be under 16 years old [15 years old or younger]
    2. Child’s habitual place of residence is USA or foreign country
    3. Other parent had lawful rights of custody when removal occurred
    4. Must be signatory of Hague convention
      1. 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
  4. Exceptions to elements
    1. Consent or acquiesce of parent
    2. One year statute of limitations
    3. Grave risk of harm if returned
    4. Violation of fundamental rights in country if returned
    5. Child objects if child is 13 years old or older but less than 16 years old
  5. Habitual residence test
    1. Settled intent to abandon prior residence
    2. Change of geography with sufficient time
  6. Wrongful removal test
    1. Did removal take pace
    2. Was child habitual resident prior to removal
    3. Was removal breach of rights under law
    4. Was other parent exercising custody rights at time of removal
  7. Can file in state or federal court
  8. If law which applies is in other country, associate attorney from that country for knowledge of laws in home country
  9. Court looks to six months of consecutive residence= home state
    1. If not home state, look to significant connections

2. CUSTODY

  1. Expert opinion
    1. Evidence Code Section 730 expert appointment
    2. No ex parte communication without stipulation in writing
    3. Must have retainer agreement with expert
  2. Parent liability for acts of minor child
    1. Civil Code Section 1714.1(a)
      1. Parent responsible for up to $25,000 for child liability
  3. Stipulations between parties
    1. Family Law Code Section 306
      1. Court must adopt stipulation of parties in absence of exceptional circumstances
      2. Material terms explicitly defined
      3. Parties questioned regarding understanding of the stipulation
      4. Parties acknowledge understanding
  4. Minor Counsel
    1. Family Law Code Section 3150
      1. California Rules of Court Sections 5.240-5.242
        1. Each child requires separate counsel
  5. Drug Tests
    1. Family Law Code Section 3041.5 extended
      1. Court may order drug and/or alcohol testing if proof of habitual, frequent or continual illegal use of controlled substances and/or alcohol
      2. Evidence may include conviction in last five years
      3. Least intrusive method= urine test which is federal standard
      4. Right to challenge positive test
      5. Positive test alone not grounds for adverse decision
      6. Standard is best interests
  6. Home schooling
    1. If both parents agree, and in best interests, Court will grant
    2. If both parents do not agree, Court will make decision
    3. Recent case of Rachel L
      1. Private school
      2. Instructed by credentialed tutor

3. DOMESTIC VIOLENCE

  1. Family Law Code Section 3044
    1. Rebuttable presumption regarding custody and visitation
  2. TRO
    1. Easier to obtain after Nakamura v Parker
    2. Allegations facially adequate must grant
  3. Mandatory judicial council revised rules and forms
    1. DV-260: confidential CLETS information
    2. DV-100: request for order
    3. DV 110: tro and notice of hearing
    4. DV 120: answer to tro
    5. DV-130: restraining order after hearing
    6. CR-162: order to surrender firearms in DV case

4. ALTERNATE DISPUTE RESOLUTION

  1. Collaborative law
    1. Permissible types of representation
      1. Four way agreement
      2. Limited representation
      3. No inherent conflict
      4. Informed client consent
  2. Enforcement by Code of Civil Procedure Section 664.6
    1. Oral
    2. Written
    3. Must contain material terms with no ambiguity
  3. Mediation confidentiality
    1. Evidence Code Section 1123
    2. Evidence Code Section 1118
    3. Evidence Code Section 1152

5. BANKRUPTCY

  1. Child support non discharge able
  2. Spousal support non discharge able
  3. Property division and marital settlement agreement will be followed
  4. Attorney fees discharge able

6. TRIAL PROCEDURE AND EVIDENCE

  1. When objecting, state “objection” and then grounds for objection
  2. No declarations for trial
  3. All evidence code and code of civil procedure rules will be followed in family law cases
  4. Possibility that trial by jury will be soon coming
  5. Present all evidence at trial both by oral testimony and documents
  6. Do not use Reifler for trial unless stipulation
  7. Object to third party hearsay or foundation or expert opinion or other pertinent objections in declarations by parties or third parties
    1. Code of Civil Procedure Section 2009
  8. Use oral testimony for Court to see credibility and demeanor on direct as well as cross
  9. Declarations
    1. Just use admissible facts
    2. Write declaration in “client voice”
    J. Motion to compel
    1. Must bring within 60 days of sending subpoena if no compliance
    2. Very technical and sanctions if not done correctly
    K. Finding and orders after hearing
    1. Prepare and serve and file proof of service as promptly as possible

7. FRIVOLOUS APPEALS

  1. Do not file appeals unless appellate attorney
  2. 80% of all civil cases are affirmed on appeal
  3. Standards of appellate review
    1. Substantial evidence
    2. Abuse of discretion
    3. Must show prejudice and not simply be harmless error
  4. Cost benefit analysis of filing appeal versus gain if remanded and new trial
  5. File notice of appeal for client in pro per if absolutely necessary
  6. Code of Civil Procedure 662; 667 and 663 in lieu of motion for reconsideration

8. BIFURCATION

  1. Family Law Code Section 2337
    1. Many changes effective 1-1-08
      1. Favored under the law as in the past
      2. Court may impose any conditions which it believes are equitable in order to protect the other spouse’s property rights
      3. Conditions binding on requesting parties estate
      4. Strengthens hold harmless provisions
      5. Requires joinder of most retirement plans
      6. Must maintain existing health care coverage or ability to pay if coverage unavailable
      7. Transfer of interest in IRA
      8. Security interest or undertaking to protect other spouse’s rights
      9. Non probate transfers
  2. Can be appealed immediately
    1. Bifurcation of status
    2. Finalization of all issues before appeal is normal procedure
  3. Before bifurcated trial
    1. Stipulation to have trial court certify for appeal
    2. Motion court of appeal
    3. Family Law Rule of Court 5.180
  4. Agree to waive requirement of same Judge for bifurcated issues for remainder of case

9. NOTICE OF UNAVAILABILITY

  1. Court of Appeal stated not legally binding
  2. Procedures for when attorneys go on vacation
    1. Send notice of unavailability to opposing party and client
    2. Arrange for coverage attorney
    3. Have law office be involved
    4. Try to file proof of service of NOU since San Diego Clerk’s office will not file NOU

10. DISCOVERY AND RELATED SANCTIONS

  1. Burden of receiving attorney of discovery
    1. Review discovery prior to sending to client or expert or any third party
    2. Return any documents inadvertently included which are confidential or protected by the attorney client privilege
    3. Resolve any disputes by agreement
    4. Seek court guidance if necessary
  2. Breach of fiduciary duty
    1. Family Law Code Section 721
    2. Family Law Code Section 1100(e)
    3. Family Law Code Section 2100c
    4. Family Law Code Section 2102(a)
    5. Family Law Code Section 2103
    6. Family Law Code Section 2104c
  3. Update SOAD as needed throughout the case
  4. Do not sell, contract or any other distribution without consent of other spouse
    1. Most significant when “in spouse” in control or business or management of community property assets

11. TAX

  1. Form 8332: release of dependency exemption and for tax credit
    1. Can be released for a specific period of time or “all future years”
    2. Keep copy in safe place
  2. Gillmore election
    1. Participant in plan eligible to retire and chooses not to
    2. Non participant spouse can ask for benefits now
      1. Advantages
        1. Payment now and do not have to wait for participant spouse to retire
      2. Disadvantages
        1. Income stream now so support for non participant spouse will be affected
        2. Freezes interest at level of date of election
      3. Federal uniform former spouse protection act
        1. Allows state to divide military pension plans
      4. Family Law Code Section 1041
        1. Non deductible as property division
        2. Use equalization language

12. CONTEMPT

  1. Purpose of civil contempt is to incentivize to comply with order and not punishment
  2. 35 counts or less only or right to jury trial as more than 180 days in jail

13. ADOPTION

  1. Presumed Father
    1. Married during birth and/or conception
    2. Signed voluntary declaration of paternity
    3. Takes child into home and holds child out as his child
  2. Alleged Father
    1. All others

14. PARENTAGE

  1. Two parents to financially support
  2. Maintain “intact family units”
  3. Honor intention of people who put procreation process in effect
  4. Presumed parent is one who takes child into home and holds child out as their own
  5. Family Law Code Section 7645: set aside motions for paternity and DNA test
    1. Two years from date of birth
    2. Two years from date of default

15. CHILD SUPPORT AND SPOUSAL SUPPORT

  1. Over riding goal: financial support of children
    1. Highest priority
    2. If wealthy, more than just necessities
    3. Deviation from guideline motions as appropriate
  2. Spousal support modification motion
    1. Cannot consider adult child
  3. MSA
    1. Consider Gavron warning
    2. Include basis of income for spousal support calculations
  4. Family Law Code section 3651c
    1. No retroactive support modification pre date of filing motion
    2. Cannot settle arrear for less than owed except when disputed
      1. Question arrear
      2. Judgment ambiguous
      3. Accord and satisfaction
  5. Move away cases
    1. Wilson v Shea stands for using CS to set up trust fund for travel
  6. Post judgment modifications
    1. Code of Civil Procedure Section 215: “personal service”
  7. Juvenile court has no ability to make child support order
  8. Earning ability
    1. Vocational evaluation
    2. Reasonable rate of return on investment
      1. 5% rate of return
      2. Expert testimony
  9. Mandatory add ons for day care and health care reimbursement
    1. List thirty day period to provide proof of payment from date of service
    2. List thirty day period to provide payment

16. MARITAL PROPERTY

  1. Presumption property purchased during marriage is community property
    1. Inheritance not community property unless commingled or transmuted
    2. Gift not community property unless commingled or transmuted
    3. Property purchased by spouse with third party money for third party no community property
      1. Resulting trust= join third party immediately
      2. By operation of law
      3. Spouse is trustee with only duty to transfer asset to third party

17. DEFERRED COMPENSATION

  1. Use date of employment, date of marriage, date of separation and all facts in MSA
  2. Survivor Benefit Plan= very complicated and legal exposure
    1. QDRO Pros
  3. Retirement versus disability
    1. May be able to argue portion of disability: Smith

18. AMERICANS WITH DISABILITIES ACT

  1. Court must accommodate as much as possible
    1. Continuance
    2. Facilities
    3. Parties
    4. Witnesses
    5. Others with interest in outcome of case
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