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Attorney Notes: Family Law Refresher Course, 2005

Attorneys must take continuing education credits in order to have their licenses current under the current rules of the state bar of California. These are attorney notes from one of these seminars. The contents include children, drug testing, move away cases, child support, spousal support, child support enforcement, spousal support enforcement, property division with reimbursement divisions, taxes, bankruptcy, attorney fees and sanctions, agreements, parentage, domestic violence and procedure. Below are attorney notes from one of these seminars. It is very important to choose an attorney who is current on the law in which your matter is.

    1. FLC 3041.5- Drug Testing
      1. can be used for supervisor or guardianship as well as for parents or non parents
      2. testing for opiates, narcotics or marijuana as illegal substances
      3. alcohol: look to abuse
        1. conduct within the last five years
        2. habitual or frequent use
      4. standard= preponderance of the evidence
      5. least intrusive method= urine test
      6. must be federally approved laboratory
      7. refusal to test= positive
      8. adulterated substance in test= positive
      9. positive test not conclusive and must still use best interests test
      10. make sure results kept confidential or sanctions to attorney of $2,500 and reporting to bar
    2. Move Away- La Musga
      1. Burgess is still good law and use La Musga and Montenegro to distinguish
      2. necessity for move cannot be whimsical, unreasonable or directly alienating other parent
      3. conditional change of custody is permitted upon event of move away
      4. change from previous law and history of psychological bond with one parent
      5. move itself can be considered detrimental
      6. widest discretion to Judge who follows Burgess
      7. factors to consider
        1. stability and continuity- Carney
        2. distance= Carlson
        3. ages
        4. relationship with both parents
        5. relationship between parents
          1. ability to communicate and cooperate in parenting plan
          2. willingness to put child(ren) first and look to post separation conduct and co parent
        6. child(ren)’s wishes if mature= Rostin
        7. reasons for move
        8. extent of shared custody
        9. does not address domestic violence, child abuse or substance abuse
      8. applies to cases with court orders and cases without court orders
      9. test= best interests of child(ren)
      10. McGuiness rights
        1. adequate notice
        2. meaningful mediation
        3. evaluation by expert
        4. full evidentiary hearing
      11. use Bramer study regarding statistics of child(ren) post move away in argument
      12. moving parent must be prepared to
        1. pay all transit and transportation
        2. have only school time and all other time to remaining parent
      13. distance
        1. more than one hour is significant
        2. look to where the family is
        3. look to whether parent can afford visitation
      14. key test is to look to parent better able to share parenting
        1. interference with access
      15. factors which may allow a move away
        1. sole legal and sole physical custody
        2. very low time share
        3. no parent child relationship
        4. remaining parent has moved in past
        5. per Williams, siblings not to be split unless compelling circumstances
          1. need testimony establishing in best interests of both siblings
          2. need evaluation establishing in best interests of both siblings
          3. need full hearing
      16. can ask for minor attorney to be appointed if circumstances warrant
      17. of all recent post La Musga cases on appeal all ordered child to stay since the move itself is considering traumatic
    3. Medical/Psychological Condition
      1. normally privileged and not at issue
      2. waiver of privilege
        1. written stipulation
        2. put in evidence any medical documentation
    4. Grandparent Rights
      1. FLC 3103: rights for non parents (including GP’s) during dissolution
      2. FLC 3104: rights for GP’s post dissolution
      3. rebuttable presumption that not in best interests of child(ren) if both parents do not agree
      4. factors to consider post Harris
        1. pre existing relationship
        2. right of visitation voluntarily per parent
        3. expert testimony needed for best interests
      5. parent can make conditions for visitation
        1. no negative statements
        2. pay all expenses
        3. monitor if necessary
        4. attorney fees
        5. specific conditions during visitation= multi page list
    5. Post Guardianship Rights
      1. can petition court on own motion
      2. if ordered, no modification without change of circumstance
    6. CACI (Child Abuse Index)
      1. mandamus writ available if name placed on CACI list and can ask for hearing
    7. Decision making authority
      1. low time parent will not make decisions if
        1. sole legal
        2. agreed by parties
        3. other circumstances intervene
    1. SSI disability excluded from support calculation under guideline
      1. analysis same for payor or payee
    2. Federal benefits from parent paid directly to child to be credited against support
    3. Extra Ordinarily High Income earner can ask for LOSC for need rather than guideline
      1. $2-3 million standard in SD county
    4. DCSS will assist any custodial parent for guideline support
    5. Issue Sanctions
      1. rarely granted
      2. cannot exceed what reasonable order wold have been if evidence produced
    6. Loan application is evidence of income and can be rebutted by tax returns
    7. Not mandatory to Court to analyze each individual hour but can go by order
    8. Do not agree to continue CS OSC without stip support will be retroactive
    9. Paternity issues for child support
      1. determine parentage within two years of birth
        1. get cotton swab from testing lab and take saliva for analysis
      2. break off relationship (if any) as soon as possible
    10. Arrears
      1. Cordero states that there is no discretion to adjust (abate) interest which is 10% by law
      2. Prieto states that there is discretion to abate penalties
      3. Hubner states have to pay penalties and interest even if court of appeal reverses
    11. 1 Compensation
      1. time period for income= must be 12 months unless presumption rebutted
    12. 1 Sources
      1. unrealized residence appreciation is not income under FLC 4058
    1. Federal income from Indian Tribe
      1. acceptable to use for spousal support purposes
    2. No non-modifiable spousal support
    1. Venue Clauses
      1. in interstate child support cases void as against public policy
      2. for modification use standards of new forum
      3. can consider other states guideline support and can find on government websites
    2. Laches Defense
      1. no if private enforcement if minor under 18 years of age
      2. available for DCSS cases
    3. TANF cases
      1. no one or three year retroactivity
    1. New Right to reimbursement
      1. under FLC 2640(c): SP of one party to SP of other party
        1. only $ for $ reimbursement
        2. FMV as of date of separation
      2. chart for reimbursement
        PROPERTYSPCPFLC 2640(b)
        PROPERTYSPSPFLC 2640(c)
    3. Omitted Asset
      1. no SOL under FLC 2556
      2. ask Court of Appeal for de novo review of MSA or stipulation
      3. “four corners review of document
      4. use reasonable construction if dollar amount or source specified for payment
  6. TAXES
    1. Dependency Exemption
      1. under federal law must go to higher adjusted gross wage earner if joint legal/joint physical
      2. put dependency exemptions in MSA
      3. dependency exemption goes with tax credit
      4. release of exemption: controlling document is legal instrument (MSA/Stip) instead of form
    2. IRC Section 1041: rules for transfers of property in divorce not taxable as between parties
    3. IRC Section 408: rules for withdrawal of IRA and must roll over properly or taxed
    1. Deed
      1. effective when transferred from bankruptcy to trustee
      2. always refer to BK attorney from SDCBA due to referral issues with disso and BK filings
    1. FLC 2030
      1. make attorney fee order based upon need and ability
      2. equality of litigating power
      3. pro per can ask for attorney fees to retain an attorney
    2. Sections for use for fees and sanctions
      1. do not use CCP 128.5
      2. use CCP 128.7
    3. Do not file drug test results with court or sanctions up to $2,500 and bar reporting
    1. Pre-Nuptial
      1. can contain valid spousal support waiver however do not include in pre-nuptial
        1. invalid if no separate counsel
        2. unconscionable when enforced (not time of signing) will render invalid
    2. Post-Nuptial
      1. very complicated and involved
    1. Existing Bio-parent
      1. person who takes role of parent can petition for “presumed” status
    2. Non Existing Bio-parent
      1. person who takes role of parent can petition for “presumed” status
    3. FLC 7575
      1. set aside default judgment if motion filed within two years of 1-1-05 OR
      2. two years from knowledge which can be imputed OR
      3. two years from date of birth if voluntary declaration of paternity
    4. FLC 7648
      1. equitable factors for consideration to set aside judgment
    1. Petitioner can ask for child support and spousal support
    2. Petitioner can ask for attorney fees
    3. If Petitioner not successful and PRO denied, ask for fees under prevailing party
    4. Renewal of DV RO (new law)
      1. orders not automatically renewable
      2. cannot separate firearm ban
      3. only for “DV lite”= non physical violent acts as basis for original order
    1. FLC 2024.5= redact social security numbers from filing
    2. FLC 2024.6= sealing of financial records
      1. I&E
      2. MSA
    3. DECLARATIONS: make sure they are executed in CA or state “executed under CA law”
    4. Mediation: all documents will be confidential as strong public policy
    5. CCP 1005(b)
      1. moving pleadings= serve 16 court days prior to hearing
      2. responding pleadings= serve 9 court days prior to hearing
      3. reply pleadings= serve 5 court days prior to hearing

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Dear Roy, I would like to thank you and all team members as well as office staff for helping me defend in this case. It has been a difficult time for me during the last couple of weeks, and now because of this success result, I am able to move forward with my new chapter of life, even a little late at this age!!! Again with much appreciation, I wish you all to continue to do the same with a big heart as it was with me, in helping those who are in need of your professional services. W.
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I want to take this time to thank you and your staff for an outstanding job with my case to terminate spousal, you are an excellent attorney Roy, and your staff is very professional and considerate to my questions and concerns of my case. Thank you very much again. T.Y.
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