Attorney Notes: CLFR Seminar 2011

California Family Law
February 18, 2011
Hyatt: Mission Bay
San Diego, California

This seminar covered legislative declaration regarding Elkins, the right to a hearing under Family Law Code Section 217, child custody, director of missing persons office, cases on disabilities of parents, allegations of abuse under Family Law Code Section 3049, privilege, confidential documents, minor's counsel, common evidence issues such as hearsay, privilege, foundation and consumer records, child preference and age of 14, parent's on active duty military and Family Law Code Section 3047, mediation and confidentiality, juvenile court records, parental rights, paternity and standing and motions to set aside a paternity judgment, presumed parent, domestic violence, marriage cases and Proposition 8, property division and date of acquisition, undue influence, constructive fraud, attorney fees, complex cases and case management conference, sealing family law files, bankruptcy, taxes and innocent spouse filing with the IRS, debt forgiveness and taxes, pension division, family law procedure, child support and spousal support.

  1. Legislative Declaration
    1. New provisions relate to evidentiary hearings
    2. Case management conference changes in 2012
      1. goal for case resolution: 20% in 6 months; 75% in 12 months and 90% in 18 months
    3. File proof of preliminary declaration of disclosure as soon as possible
    4. Send discovery within 60 days of filing as needed
    5. Restructure minor counsel system
    6. 70% of litigants are self represented
    7. Family Law Code Section 217
      1. right to a hearing on order to show cause
      2. evidentiary hearing absent stipulation
      3. right to cross examination
      4. Judge can assess credibility of witnesses
      5. Jude can assess trait of witnesses
      6. Judge can ask questions of witnesses
      7. consider having client go to watch other family law cases in same department
      8. substantive issues
      9. I. material facts in controversy
      10. consider whether evidence is cumulative
      11. serve witness list for third parties with order to show cause or with response to show cause
      12. temporary orders only
    8. Statutory priority of cases
      1. DVPA with custody
      2. DVPA
      3. contempt
      4. custody
      5. child support
      6. spousal support
      7. attorney fees and costs
      8. property rights and other family law related subjects
      9. discovery

  2. Child Custody
    1. Issue of parental alienation becoming more of a focus
    2. Issue of justifiable estrangement becoming more of a focus
    3. Best interests of child defined
    4. Domestic violence and their relationship to child custody
    5. Use 730 custody evaluation for parental alienation syndrome

  3. Director of Missing Persons Office
    1. San Diego District Attorney's Office
    2. National Center for Missing and Exploited Children
    3. United States Attorney General's Office
    4. Recovery of missing children
    5. Protocol and procedure

  4. Disabled Parents
    1. Family Code Section 3049
    2. Declaration regarding health, safety and welfare
    3. Disabled parent entitled to equal consideration for parenting plan order
    4. Physical handicap is not basis for denial of custody
    5. Schizophrenia alone is not sufficient basis to remove child if parent in treatment
    6. History of mental health problems alone not sufficient basis for termination of reunification services
    7. Chronic mental illness alone not enough to terminate parental rights

  5. Child Abuse Allegations
    1. Family Law Code Section 3027 authorizes Court to allow CPS investigation
    2. Court may make temporary orders
    3. Includes sexual abuses
    4. Sanctions and attorney fees for false allegations under Family Law Code Section 3027.1

  6. Privilege
    1. Therapist
    2. Medical Doctor
    3. Minor Counsel
    4. Attorney
    5. Waiver of privilege: look to who holder of privilege is
    6. Joint and sole legal custody considerations for privilege
    7. Standing to assert privilege
    8. Minor counsel will hold privilege for minor once appointed
    9. Minor may also hold privilege: look to age of child

  7. Confidentiality
    1. Medical records
    2. School records
    3. Therapy records
    4. Disclosure and in camera review of confidential records

  8. Minor Counsel
    1. Family Law Code Section 3151
    2. 2. Elimination of statement of issues and contentions
    3. Minor counsel can file their own order to show cause
    4. Rights and duties of minor counsel should be viewed in the context of how admissible evidence will be presented at an evidentiary hearing
    5. Minor counsel not available as a witness
    6. Minor counsel must be prepared to introduce evidence and examine witnesses
    7. Minor counsel has access to records including those of CPS

  9. Evidence Issues
    1. All evidence code sections apply to family law cases
    2. Hearsay issues
    3. Privilege issues
    4. Foundation issues

  10. Child Preference
    1. Family Law Code Section 3042
    2. Operational 1-1-2012
    3. Children age 14 and older may give "input" on custody and visitation issues
    4. Court must state reasons for child preference and input
    5. If court precludes child from testifying, must provide alternative means for input
    6. Provisions allowing court precluding child from testifying are modified
    7. Parents or counsel may inform court
    8. Relevant considerations for court to question child
      1. would it benefit court to question child
      2. would it benefit child to be questioned
      3. drawbacks to questioning child
      4. should the child testify at all
      5. if testify, should be in chambers or open court
      6. recognition of child of "under oath" and consequences
    9. Court not bound by child's preference
    10. Questions to consider asking child when testifying
      1. did anyone promise you anything for your testifying
      2. if so, what
      3. did anyone tell you to tell me anything
    11. Parental alienation syndrome
    12. Justified estrangement considerations

  11. Parent on Active Military Duty Deploying, Mobilizing or on Temporary Duty
  12. 1. Family Law Code 3047 effective 1-1-11
    1. Parent must be on active duty deploying, mobilizing or assigned to temporary duty
    2. Need copies of orders
    3. Purpose is to simplify and expedite process when military parent not in San Diego
    4. Reversionary presumption
    5. Court may grant reasonable visitation to step parent, grandparent or other family member if reasonable visitation is appropriate and prior relationship exists
    6. Court to consider whether this wold facilitate child's contact with absent parent
    7. Court must balance interest of child in access to other family against parental authority
    8. Court shall expedite hearing
    9. Court shall allow absent parent to participate be electronic means
    10. Does not affect time share for purposes of support if granted

  13. Mediator Or Counselor
    1. Family Law Code Section 3183
    2. San Diego is a recommending county with a written recommendation
    3. FCS workers will now be called "Child Custody Recommending Counselor"
    4. Process will be called "Child Custody Recommending Counseling"

  14. Investigations
    1. Family Law Court can request CPS consider initiating juvenile court proceedings
    2. Social worker shall include substance of interview with child and interview child if child over 4 years old.
    3. Look to prior family service agreements

  15. Juvenile Court Records
    1. Welfare and Institution Code Section 827.10
    2. If family law proceeding is pending, right to access includes inspection of records and copies for use in proceedings
    3. Access granted to Judge, parent, guardian, attorney for party, mediator, family law mediator, court appointed investigator, minor counsel
    4. Records are privileged and confidential
    5. Ask court for in camera review of records
    6. Ask to have court seal the records with minute order or transcript

  16. Parental Rights
    1. May now bring a parental termination motion in a family law case
    2. Non compliance with court orders are a factor
    3. Based on seven years of economic and emotional abandonment
    4. Must be coupled with petition for step parent adoption
    5. Case law prohibits leaving child with only one parent

  17. Paternity
    1. Family Law Code Section 7630
    2. Presumed father status
    3. Non presumed father status
    4. AB 2020 repeals former Family Law Code Section 7631 on time for bringing action
    5. Challenges under Family Law Code Section 7630(a) under marital presumption
      1. child
      2. child's natural mother
      3. presumed father
      4. adoption agencies
      5. prospective adoptive parents
    6. Establishing paternity under Family Law Code 6323(a)(2)(B)
      1. giving birth to the child
      2. child conclusively presumed child of marriage
      3. adopted child
      4. voluntary declaration of paternity
      5. juvenile court proceeding establishing parentage
      6. criminal or IPA proceedings
      7. paternity judgment
      8. stipulation

  18. Voluntary Declaration of Paternity
    1. Can be signed at hospital
    2. Can be signed at DCSS
    3. Can be signed at court
    4. No voluntary declarations of paternity if mother is married

  19. Domestic Violence
    1. Renewal of domestic violence procedures
    2. Family Code Section 6340(a)
    3. Custody orders may survive termination of any protective order

  20. Proposition 8 Marriage Cases
    1. As of January 1, 2011 the below are recognized as valid relationships under CA law
      1. opposite sex marriages
      2. registered domestic partnerships
      3. 18,000 same sex couples who married under Family Law Code Section 308b
      4. Family Code Section 308c couples

  21. Property Division and Time of Acquisition
    1. Cannot divide social security benefits and educational degree
    2. If can divide, look to time of acquisition of property
    3. Look to see if contingent right brought into marriage
    4. Look to whether there is a separate property component if acquired during marriage
      1. gift
      2. inheritance
    5. Changing of character analysis
      1. transmutation
      2. commingling
      3. community funds paid to separate property asset
      4. separate property funds paid to community property asset
    6. Equitable apportionment
      1. Moore-Marsden
      2. survivor benefit plan
      3. defined benefit plan

  22. Undue Influence and Constructive Fraud
    1. Undue influence consists of
      1. the use, by one in whom a confidence is reposed by another, or who holds a
      2. real or apparent authority over another, of such confidence or authority for the
      3. purpose of obtaining an unfair advantage over the other
      4. taking unfair advantage of another's weakness of mind
      5. taking a grossly oppressive and unfair advantage of another's necessities or distress
    2. Constructive fraud consists of
      1. breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or any one claiming under him, by misleading another to their prejudice
      2. act or omission as the law specially declares to be fraudulent without respect to actual fraud
    3. Family Law Code Section 721

  23. Attorney Fees
    1. Family Law Code Section 2030
    2. Family Law Code Section 2032
    3. Family Law Code Section 2034
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