Introduction to Family Law

1. Introduction to Family Law considerations for helping families

2. What Family Law Entails • Divorce (including child custody, child and spousal support, and division of assets and debts) • Child custody and child support for unmarried parents • Domestic violence restraining orders • Drafting and review of premarital agreements, post-marital agreements, and co-habitation agreements • Guardianship cases (though the probate court, not the family court, presides over these) • Parentage • Adoption • Surrogacy

3. Drafting the Petition • No advantage or disadvantage to being “Petitioner” or “Respondent.” • Many practitioners reserve the Court’s jurisdiction broadly in the Petition and Response, to preempt more work later. • California Family Code §2080: The court shall restore the birth name or former name of a party upon request, regardless of whether the party affirmatively made that request in the petition.

4. Filing the Petition • Filing the Petition generally does not trigger any proceedings. In some counties, it initiates the case management calendar, and the Court sets the first Status Conference upon Petition filing. • California Rule of Court 5.83(c)(3): If 18 months pass after the Petitioner filed, the court’s obligation for further review of the case is relieved until the case qualifies for dismissal. • CRC 5.83(c)(5): Goals for dissolution, legal separation, and nullity cases filed on or after January 1, 2014: (A) At least 20% are done within 6 months of petition filing; (B) At least 75% are done within 12 months of petition filing; and (C) At least 90% are done within 18 months of petition filing.”

5. Serving the Petition • Serve Petition after filing it, with Summons, any county-specific forms, and blank responsive pleadings. • Notice and Acknowledgment of Receipt: good alternative to process server for serving Petition on pro per litigants. Otherwise, personal service by a non-party 18 years or older is required. • To serve by NAR: • Mail Form FL-117 to opposing party with Petition and accompanying documents. • Opposing party must sign and return the Notice within 20 days of the date of your mailing the Notice out to the opposing party. If the Respondent does not do so, the Petitioner can request reasonable expenses for having to serve in another manner (CCP 415.30).

6. Summons and Standard Family Law Restraining Orders • Summons: summons the Respondent to file the Response. • The Summons sets forth Standard Family Law Restraining Orders, or ATROs (acronym originated with old Summons form, which called them “Automatic Temporary Restraining Orders”). • Effective on Petitioner at Petition filing, and on Respondent at service on Respondent, the ATROs restrain both from (non-exhaustive list): • Removing minor children from the state • Changing beneficiaries to any insurance policy • Transferring or encumbering property • Creating or modifying non-probate transfer in a way that affects disposition of property subject to any such transfer • A Stipulation & Order or court-issued order can override any of these.

7. Filing and serving the Response • Opposing party has 30 days from date of Petition service to file the Response, then can serve Response by U.S. Mail. • Failure to timely file and serve Response can technically result in default.

8. Temporary physical custody • Legal standard: best interest of the child. • Physical custody: Determined by amount of time each parent spends with the child. • “Sole” physical custody: significant majority of the time. • “Joint” does not necessarily mean “equal”; 80/20 can be “joint.” • Sole physical custody is a prerequisite (not sufficient in itself) to securing a court order allowing a party to move away with the children. “Moving away” can mean within the same state, if commute is long enough.

9. Temporary legal custody • Legal custody: Determines who makes decisions about the child’s (non-exhaustive list) education, medical care, extracurricular activities, and religious affiliations and activities. • This has nothing to do with where the children live or spend most of their time. • Sole legal custody: one parent has exclusive rights to make these decisions. • Joint legal custody: neither can act unilaterally. • Courts overwhelmingly default to joint legal custody. • Judges can isolate certain categorical decisions for sole legal custody, granting joint legal custody as to the rest.

10. Access to child’s records Family Code Section 3025: Notwithstanding any other provision of law, access to records and information pertaining to a minor child, including, but not limited to, medical, dental, and school records, shall not be denied to a parent because that parent is not the child’s custodial parent.

11. Temporary child support and temporary spousal support • Temporary child support and temporary spousal support: • Determined by proprietary software (most commonly DissoMaster), which analyzes the relevant income, deductions, and (for child support) visitation. • Designed to support one spouse at the level possible in present time, factoring in both parties’ actual earnings or capacity to earn. • Either party can request vocational evaluation order, if other party is underearning. • The Court can issue a Gavron warning (Marriage of Gavron): tells supported spouse the Court expects that party to earn at capacity by “x” date, or Court will impute income at the party’s established or otherwise proven earning capacity.

12. Other temporary orders • Sale of marital residence: asking the Court to force a sale, if the parties can’t agree to sell right away, and the party withholding consent cannot afford to buy the other out; or the parties agree to sell and create an order to govern division of sales proceeds. • Terminate marital status: parties can do this by Stipulation and Order, or the Court will order it upon one party’s request. • Do this only if one party plans to remarry before the parties finish dividing assets and debts and assigning permanent child and/or spousal support. • Party requesting termination of status, or both parties if by agreement, must show they have addressed termination of health insurance coverage upon termination of status; and that they have joined any retirement accounts that must be joined in the proceedings.

13. Exchange of preliminary disclosures • Whether settling or trying the case, the parties must first exchange preliminary disclosures. Petitioner serves within 60 days of filing the Petition; Respondent serves within 60 days of filing the Response. • Income & Expense Declaration: 4-page form; income proof attached. • I give most recent pay stubs going three months back, or most recent Profit & Loss Statement going back two quarters. Less is required; more is better. • Schedule of Assets and Debts: 4-page form, with supporting documentation attached, showing proof of character and value of assets and nature, character, and extent of debts.

14. Family law discovery • Family law discovery is often unnecessary. • Discovery needed when (non-exhaustive list): • One party had exclusive access to the parties’ assets and debts. • Either party needs to see where money went or the source of any transaction. • Either party is not earning at capacity—other party could compel answers about work search efforts and/or documents supporting claim that underperformance is justified. • Either party has questions about the other party’s separately filed tax return. • Always try to secure answers and documents informally; the parties’ reciprocal fiduciary duty means they should cooperate. Formal discovery is necessary only when the opposing party won’t meaningfully participate in a less formal process.

15. Forms of family law discovery • Request for Production of Documents—most common type; unlimited number permitted. • Special Interrogatories—limited to 35. • Form Interrogatories, tailored to family law (judicial council form FL-145; 21 questions). • Request for Admissions—good for double-checking that the other party fully disclosed all accounts of a certain type on their Schedule of Assets and Debts, when you suspect they have left something off. Example: “Please admit or deny that your Fidelity SEP IRA number ‘x’ and your 401(k) from employment with ‘y company’ are the exhaustive list of your retirement accounts.” Limited to 35.

16. Motion to Compel • Due for filing and service within 45 days of receiving discovery responses. • Rare in family law. It’s bad when you have to force someone to give you information that their fiduciary duty requires them to give you. • As with civil cases, you must show meaningful efforts to meet and confer before filing a Motion to Compel. In family law, the duty to provide updates to all information given and documents produced is ongoing, so one party is entitled to updates upon request even after the discovery window has closed. • You can lose your right to file a Motion to Compel, but you are entitled to relevant information and documents at any time.

17. Permanent spousal support • Family Code Section 4320: List of factors to consider in deciding on duration and amount of support. These include (non-exhaustive list): • Marketable skills of supported party; • Extent to which one party contributed to othe party’s education/career; • The needs of each party based on the marital standard of living; • Each party’s assets and debts; • Duration of the marriage; • Age and health of the parties; • Domestic violence and the attendant emotional distress; and • Balance of hardships to each party.

18. Permanent spousal support considerations • Consider spousal support buyout, rather than monthly payments. • Risk for both: Supporting party’s income could increase after supported party accepts buyout; supported party could die the next day. • Supporting party: Lump sum buyout could be a risk; the supporting party may be able to discharge that debt in bankruptcy, cannot do the same with monthly support obligation. • Supported party: Consider insuring monthly permanent spousal support payments with life insurance policy sufficient to cover the balance upon supporting party’s death.

19. Watts charges and Epstein credits • Watts charges: charges against a spouse’s share of community property made to reimburse the community, for the value at the party’s exclusive use of the property after separation. Marriage of Watts, 171 Cal.App.3d 366 (1985). • Example: One spouse stays in marital residence rent free during divorce. That spouse owes the other half of the fair rental value. • Epstein credits: reimbursement claims against the community property for the payment of a community debt with separate assets. Marriage of Epstein, 24 Cal.3d 81 (1979). • Example: One spouse uses their post-separation income to continue paying off a community credit card. That spouse is entitled to a credit from the other spouse for half the value of those payments.

20. Joinder of retirement accounts • Before settling or trying the case, the employee spouse for any retirement plan subject to joinder must join that plan into the case. • When you join a plan, the plan files a Response and any objection to joinder. Judicial council form FL-318-INFO is an information sheet describing which retirement accounts do and do not warrant joinder. Those requiring joinder (non-exhaustive list): • CalPERS and CalSTRS plans • 401(k) • Joinder not required for (non-exhaustive list): • IRAs • Funded plans, qualified or unqualified, covering employees working for private-industry employer • Unfunded, nonqualified plan covering employees working for private-industry or tax-exempt employer (other than excess benefit plans) • Federal government plan

21. Permanent physical and legal custody • Same analysis as with temporary physical and legal custody: best interest of the child. • Once the Court or the parties make permanent designations, either party can later seek to modify the orders by showing a change of circumstances, and that the best interest of the child would be served by the orders requested at that later date.

22. Final disclosures • Final disclosures are the same as preliminary disclosures: an Income and Expense Declaration and a Schedule of Assets and Debts. • The parties can agree to mutually waive final disclosures, and most do. Reasons to waive final disclosures: • Preliminary disclosures were close in time to settlement prep, such that the information is likely to be repetitive or materially similar. • The parties’ finances are simple, and/or neither is terribly concerned that the other is hiding money. • The parties already divided their assets and debts during the proceedings, and neither child support nor spousal support is at issue. • Reasons to insist on final disclosures: Opposite of the above is true.

23. Global settlement • San Francisco’s process: • Mandatory Settlement Conference: two seasoned family law attorneys volunteer to help settle financial issues (not co-parenting issues). • If successful, the parties read their settlement onto the record before a judge. • If not successful, the parties move to a Judicial Settlement Conference. • Judicial Settlement Conference (“JSC”): the parties meet with a San Francisco family law judge—not the judge presiding over their department, unless they jointly request that judge. • If the parties do not settle at the JSC, the case goes to trial.

24. Trial • Evidentiary proceedings longer than twenty minutes go to trial. • A trial in the midst of marital dissolution proceedings, focusing on one or some but not all issues, is a long-cause hearing, often called “trial.” • A trial seeking to resolve all issues in the case is also called a trial. • No juries; the judge is the only fact-finder. • Judges sometimes issue rulings on the bench and other times take matters under submission, issuing a written ruling later. • Unless parties waive them or the Court asks parties not to present them, counsel for both sides provide opening and closing arguments. Closing arguments are sometimes written.

25. Premarital agreements, Part 1 of 2 • Family Code Section 1615(a): A premarital agreement is not enforceable if the party against whom enforcement is sought proves either of the following: • (1): Party did not execute the agreement voluntarily. • (2): The agreement was unconscionable when it was executed and, before execution of the agreement, all of the following applied to party: • (A): Party did not receive fair, reasonable, full disclosure of property or obligations of other party. • (B): Party did not voluntarily and expressly waive, in writing, right to disclosure of property or obligations beyond disclosure provided. • (C): Party did not have, or reasonably could not have had, adequate knowledge of the property or financial obligations of the other party.

26. Premarital agreements, Part 2 of 2 • Family Code Section 1615(b): Court shall decide unconscionability of a premarital agreement. • Family Code Section 1615(c): Premarital agreement not executed voluntarily unless the court finds in writing or on the record all of the following: • (1): The party against whom enforcement is sought was represented by independent legal counsel or expressly waived that right. • (2): The party against whom enforcement is sought had at least seven calendar days between presentation of final agreement and signature. • (3): The party against whom enforcement is sought, if unrepresented, was informed of terms and basic effect of agreement, and was proficient in the language in which the explanation of the party’s rights was conducted and in which agreement was written. • (4): The agreement was not executed under duress, fraud, or undue influence, and the parties did not lack capacity to enter into the agreement. • (5): Any other factors the court deems relevant.

27. Barry Bonds: A Premarital Agreement origin story • Barry Bonds met Susann Margreth Branco (“Sun”) in Montreal in August 1987, while he was visiting from Arizona, where he lived. After Bonds returned home, the two had a five-month, long-distance relationship, before eloping in Las Vegas in February 1988. They were both 23 years old when they married. • Bonds and Branco signed their Premarital Agreement the night before their wedding. Branco—a waitress and bartender, whose native language was Swedish, and who had emigrated from Sweden two years prior—did not have a lawyer. Bonds had two attorneys. She saw the agreement, by which she waived her right to “a share of his present and future earnings,” on the day of signing. • They flew to Vegas immediately after signing. Bonds filed for divorce in 1994 in California, where they were living at the time. Bonds prevailed on Premarital Agreement enforcement, but within the year, California law on premarital agreements changed to what they are now.

28. Post-marital agreements • Similar to premarital agreements, but riskier because post-marital agreements are inherently suspect. • Did one party sign under duress after something went wrong in the marriage? • Does the post-marital agreement incentivize the party who requested it to give up too easily on marital counseling or other marriage redemption efforts?

29. Haines and Delaney • California Family Code Section 721, an interspousal transaction that advantages one spouse over the other gives rise to a presumption of undue influence, due to the confidential relations between spouses. Marriage of Haines, 33 Cal.App. 4th 277, 287 and 294 (1995). • California Evidence Code Section 662, the common law presumption favoring title, is improperly applied to marital proceedings when in conflict with Family Code Section 721. Haines, 33 Cal.App. 4th at 282 and 287. • The application of Evidence Code Section 662 is improper when in conflict with the presumption of undue influence codified in Family Code Section 721. Delaney, 111 Cal.App.4th at 999.

30. Assisted reproduction technologies and parentage, Part 1 of 4 • See Daily Journal article: www.dailyjournal.com/mcle/298 • Family Code Section 7606 defines “assisted reproduction” as conception by any means other than sexual intercourse. • Sperm donation is a commonly recognized example. • Family Code Section 7613 identifies requirements for classifying a man as a sperm donor: A licensed physician and surgeon must supervise the insemination. If person being inseminated meets that standard and she has a husband, her husband is legally the father of the child born of that insemination.

31. Assisted reproduction technologies and parentage, Part 2 of 4 • Jhordan C. v. Mary K: 1986 CA case. Two women, not a romantic couple, wanted to and did raise a child together. At trial, they said they never intended that the sperm donor would be the child’s parent; the donor said he always intended to be. All had been significantly involved with the child. • CA appeals court: The parents were: 1) the woman who had carried the child and 2) the sperm donor. The woman who had not carried the child could have substantial visitation but not parenting rights. • Bruce v. Boardwine: 2015 Virginia case. Sperm donor found to be father where both the sperm donation and insemination took place between the two parties without medical assistance, where the parties intended at conception that the donor would be a father to the child. • E.E. v. O.M.G.R.: 2011 New Jersey case. Single woman had a child by sperm donation. Parties signed notarized agreement shortly after conception to terminate sperm donor’s parental rights. No father listed on birth certificate. • Court would not terminate sperm donor’s parental rights, though he appeared by phone saying he never intended to be father to the child.

32. Assisted reproduction technologies and parentage, Part 3 of 4 • Surrogacy is another commonly recognized example. • Family Code Section 7960: A surrogate is a woman who either carries a child for another person using the surrogate’s own eggs, or, in the case of a gestational surrogate, is a woman who carries a child for another person and is not genetically related to the child she carries. • What if two women both qualify as “mothers” by this statute—one genetically and one as a gestational surrogate? • Johnson v. Calvert: 1993 CA case. The Court must decide the case in accordance with the parties’ intent at the time the child was conceived.

33. Assisted reproduction technologies and parentage, Part 4 of 4 • K.M. v. E.G.: Female same-sex couple who had once been California-registered domestic partners. E.G. carried a baby conceived using K.M.’s eggs during their partnership registration period. At conception in 1995, K.M. signed a parental rights termination form. K.M. never listed herself on the birth certificate or adopted the child. Parties married shortly after child was born and held themselves out as the child’s co-parents. Neither party identified a father when this parentage dispute arose in 2005. • Trial court: K.M. not the child’s parent. • CA Supreme Court: Yes she is. They both are.

34. California’s three-parent law • Family Code Section 7610: The parent and child relationship may be established between child and biological mother; between child and biological father; or between child and adoptive parent. • Family Code Section 7611: Presumed parent statute, assigning parentage to the person married to the child’s biological mother. • Family Code Section 7612: If two or more conflicting presumptions arise under Section 7610 or 7611, policy and logic control. • In 2013, Governor Jerry Brown signed three-parent bill into law, allowing third party in CA to claim parentage if that person is already effectively a parent to the child and if it would harm the child to have that parent excluded from parentage under CA’s presumed parentage statute. • In re M.C.: 2011 CA case. Appellate court reversed and remanded lower court’s order granting parentage of one child to three people, and insisted on a Section 7612 analysis. This ruling gave rise to Brown’s three-parent law.

35. Domestic violence restraining orders • Family Code Section 6300: A court may issue an initial Restraining Order upon reasonable proof of a past act or acts of abuse. Nevarez v. Tonna, 227 Cal.App.4th 774, 783 (2014). • The Court need only find by a preponderance of the evidence that one or more of the acts of violence alleged have taken place. • Family Code Section 6345: A court may renew a Restraining Order only upon finding a probability of future abuse.