Attorney Notes: CLFR Seminar 2010

CALIFORNIA FAMILY LAW
FEBRUARY 19 & 20, 2010
MARINA DEL REY, CALIFORNIA

This seminar covered child visitation, child custody, spousal support, family law, legal separation, father’s rights, mother’s rights, annulment, alimony, family law court and procedures, paternity, divorce, Indian Child Welfare Act, the Hague Convention, Uniform Child Custody and Jurisdictional Enforcement Act, transmutations, bankruptcy and many other topics.

1. Child Support
   1. Income for purposes of support
   2. Section 4057.5: new mate income for child support
   3. Use rate of return on bank accounts and investments: need to determine rate of return as of date of hearing
   4. Take out one half due to new mate income
   5. For enforcement of child support, can use community property since indivisible interest
   6. Deviation from guideline for extreme hardship= food, shelter, housing and medical care
   7. Parse out both Section 2640 reimbursement credits as well as real estate using Moore- Marsden and business interests using Perrera/Van Kamp
   8. ICWA cases for value of housing and legal fees
   9. If payor has regular bonus, the burden of proof is on the payor= letter from employer
   10. Presumption income is gross on tax returns or W-2
   11. DCSS can seize funds for collection even though arrear payments are current
   12. Some downward deviations from guideline may be equitable
   13. UCCJEA controls for custody and visitation but UIFSA applies for child support orders and any state may make a child support order if there is personal jurisdiction and no other state makes the order.
   14. Enforcement of child support can be to estate of payor after death
2. Spousal Support
   1. Automatic change of circumstances for payor when retirement
   2. Not automatic change of circumstances for payee when retirement
   3. Supported spouses to become self supporting in reasonable time
   4. Must analyze multiple factors under Section 4320
   5. Waivable
   6. Best interests of child not factor in imputing income for spousal support
   7. Standard is marital standard of living
   8. To use reinvestment of funds into business must show business in benefitted, will be profitable using this reinvestment strategy
3. ADR, Annulment and Bankruptcy
   1. In arbitration, may contract for judicial review
   2. All marriage settlement agreements which are ambiguous are resolved against the draftor
   3. Defense to Section 271 sanctions is an unreasonable burden for payment
   4. Parties [and attorneys] must sign all substantive agreements which include stipulations, Special master and agreements to be enforceable
   5. Conversations during mediation are non admissible and these include attorney-client communications even when there is a dispute between attorney and client
   6. Annulments do not survive death unless filed before death
   7. Void marriages include bigamy and incest
   8. Voidable marriages include unsound mind, underage spouses, procreation and fraud in regards to procreation
   9. Bankruptcy stops all family law actions once noticed by BK court
   10. Priority is property, support and then attorney fees
   11. Family law [state court] can only set arrearages and collections on non estate assets
4. Transmutations
1. Starkman/McDonald/Benson: transmutation cases
2. Family law statutes include 850, 851, 852, 853
3. Three step approach
   1. Valid as to form: pre 1-1-80 oral ok; post 1-2-80 must be express and in writing
   2. If valid as to form, is it free of fraud or undue influence
   3. Were 2640 rights to reimbursement waived
   4. 2640(b) credit may “wash” transmutation interest
   5. 2640c credit was enacted in 2005 and is for separate property to separate property
4. Must be freely entered into, with all the facts known and knowing the legal consequences
5. No undue influence for marital transmutations
6. Requirements for transmutations
   1. Writing post 1980
   2. Character [ownership] being changed
   3. No express “magic” language
   4. No extrinsic evidence as to fraud
   5. Motivation or intent is irrelevant
7. Estate planning drafting
   1. Look to any original transmutations
   2. Look to any secondary transmutations
   3. If condition not met, then transmuted back to original form
   4. Revocation does not revoke transmutation in a revocable living trust
   5. A will is not a transmutation since it does not pass title when formed and only upon death
   6. A revocable living trust is a transmutation as it transfers title now into community property to avoid probate cost and fees and also for a step up in basis at time of death for real property in certain circumstances
8. A vehicle cannot be a gift nor transmuted orally
9. Transmutation from separate property to community property does not waive Family Law Code Section 2640 right to reimbursement unless expressly waived in the transmutation
10. Transmutation from community property to separate property is analyzed by looking to any commingling and contribution of community funds and contribution to community effort and consider Moore-Marsden for real property and Perrera-Van Kamp for business
5. Common Presumptions
   1. Any property acquired during marriage is community property under Family Law Code Section 760
   2. Any property acquired before date of marriage or after date of separation is separate property under Family Law Code Section 770
   3. Family expenses are taken first from community property and then separate property
   4. Separate property expenses are first paid from separate property and then community property
   5. Reimbursements under Family Law Code Section 2640 will be granted upon tracing
   6. Confidential relationship between spouses
6. Setting Aside Judgments
   1. Code of Civil Procedure Section 473 for default judgments
   2. Family Law Code Section 2122 are for setting aside judgments entered into under several grounds: actual fraud where the defrauded party was kept in ignorance or some other manner which prevented full participation in the proceedings; perjury in the preliminary or final declaration of disclosure; duress; mental incapacity; a mutual or unilateral mistake of fact or law and failure to comply with the disclosure requirements
7. Obtaining Judgment When Preliminary Declarations of Disclosure not complied with
   1. Family Law Code Section 2107(b)(3) allows for a motion to be filed and the court to grant on a showing of good cause for a voluntary waiver of the proof of service of the preliminary declarations of disclosure
8. Erosion of Change of Circumstances Rule to Best Interest of Child[ren]
   1. If exit order from juvenile court, then need a change of circumstances to modify
   2. Montenegro, Birnbaum, Enrique M., Lucio and Keith R. are the leading cases for the non applicability of the change of circumstance rule for modification of custody orders
9. School Records for Minors
   1. If minor is above ago of 12 years old, need to notice child when subpoena for school records: add to notice of objection for subpoena
10. Child Visitation
    1. Family Law Code Section 3100 et seq is the general rule that favors parental visitation
    2. The court shall grant reasonable visitation unless the visitation would be detrimental to the best interests of the child
    3. Special rules whether there is a protective order in effect. The court shall consider
       1. Nature of acts enjoined
       2. Time since order made
       3. Parent may submit proposed monitors
11. Uniform Child Custody and Jurisdictional Enforcement Act in context with Hague Convention
    1. Four aspects of jurisdiction
       1. Initial determination of jurisdiction
       2. Continuing jurisdiction
       3. Enforcement and modification jurisdiction
       4. Emergency jurisdiction
    2. Jurisdiction to make initial determination
       1. California has authority to make an initial child custody determination if
          1. California is home state on date of commencement of action
          2. California was home state within six months before commencement of action and child is absent from California but parent continues to reside in California
          3. Burden of proof is on parent asserting Uniform Child Custody and Jurisdictional Enforcement Act
          4. only if another State does not have jurisdiction as home state or court of home state declines to exercise jurisdiction since other state finds California is the more appropriate forum and the child or parents have a significant connection with California other than mere physical presence and the substantial evidence is in California concerning the child.
    3. Continuing jurisdiction general rule
       1. If California is decree state and made initial custody determination, the California has exclusive and continuing jurisdiction unless California court determines
          1. neither child nor one parent have a significant connection with California AND
          2. ubstantial evidence is no longer available in California concerning care, protection, training and personal relationship
12. Indian Child Welfare Act<
    1. Compliance with the Indian Child Welfare Act is mandatory
    2. Indian Child Welfare Act notice is jurisdiction and not optional
    3. Applies only if custody taken away from both parents
       1. Family law joinder of non parent
       2. Guardianship
       3. Adoption
       4. Juvenile court where child becomes ward of the Court
13. Paternity
    1. Four categories of fathers
       1. Biological: paternity is established but not presumed
       2. Presumed: fits within statutes
       3. Alleged: may or may not be a father but established as biological or presumed
       4. De Facto: one who, on a day to day basis, assumes the role of a parent for a substantial period of time
    2. Presumptions
       1. Child of wife cohabiting with husband is child of husband under Family Law Code 7540
       2. Voluntary declaration of paternity under Family Law Code 7571 & 7572
       3. Father is married to mother and child born during the marriage or within 300 days after under Family Law Code 7611
       4. Father attempted to marry mother prior to birth of child but marriage could be or was invalid under Family Law Code 7611
       5. Father attempts to marry mother after birth of child and is named on the birth certificate with consent and voluntarily undertakes support of child
       6. Father receives child into his home and openly holds out child as his child and this applies to same sex relationships as well as opposite sex
       7. Application of presumptions should never result in child having less than two parents
       8. When competing presumptions under Family Law Code 7611 & 7612, then the presumption with the greater weight under logic and policy controls
14. Termination of Parental Rights
    1. Under Family Law Code 3041 detriment includes
       1. Harm of removal from a stable placement of child from a person who has assumed on a day to day basis the role of paren fulfilling the child’s personal needs and the child’s psychological needs for care and affection for a substantial period of time
       2. Detriment to the child standard does not require a finding of parental unfitness and disruption of a successful established custody arrangement is sufficient
       3. Probate Code 1516.3 authorizes termination of parental rights after two years of probate guardianship if adoption is in the best interests of the child considering the relationship of child and birth parents, child and guardian and guardian’s family members and the child and sibling relationship
       4. Best interests test includes circumstances leading to guardianship, parental effort to maintain contact with child, exigencies that might hamper contact efforts and other evidence of commitment to parental responsibilities
15. Domestic Violence
    1. Disturbing the peace can be a ground for a domestic violence TRO/PRO
    2. File notice of intent for oral testimony and request evidentiary hearing
    3. Requisite abuse need not be actual infliction of physical injury or assault
    4. Can be destroying the mental or emotional calm of another, accessing, reading and disclosing confidential e mails of victim to others
16. Child Dependency Credit
    1. If not more than 50% with parent filing for credit, must attach release of dependency form Per Family Law Code 8332