CFLS Flashcards
Temporary Orders in Child Custody? - FC Section
3062
FC 3062
Court’s ability to make temp orders in a custody providing. May set the hearing in 20 days and extend any temp orders for 90 days where someone has been concealing the C.
Ex Parte App CRC requirements
CRC 5.151 - pleading requirements - including notice, status quo/current orders, factual basis for orders, how emergency order changes status quo/current order
Joint Custody - FC Section?
FC 3080 - presumption that joint custody is in BIC
Joint Custody
Ct must state reasons why granting or denying request for joint custody; specific orders re px custody, sufficient enough to permit enforcement
Joint Custody - FC Section?
3002
Joint legal custody- FC Section?
3003
Joint Px Custody - FC Section? Explain
3004; < 25% TS not joint px; where there is significant contact with both parents
FC 3010
no presumption for F or M in custody, no tender years
Visitation
• Reasonable visitation shall UNLESS would be detrimental to BIC (FC 3100(a))
o V can be to anyone with an interest in welfare of C; BIC standard
o Order should be specific as to date/place/manner of txfr, esp with DV
Visitation with DVRO/CPO
Ct should state inability to comply with terms of CPO/DVRO and that order being made is in the BIC
Supervised Visitation
• Restrictions on V – maybe approp where obstructionist behav of P/insubordination
o Considerations for Sup Visits (FC 3200, et seq.) include qualifications, exp., edu., COI, record keeping, screening of providers, safety/emergency proc.
• Supervisor cannot be subject to the supervision with own C
Best Interests of Child - FC Section?
3020
Best Interests = ?
Health, safety, welfare of the children = primary concern of the Court (FC 3011)
Considerations in determining BIC
limitations of P (not px disability) child abuse domestic violence habitual drug/alcohol abuse absence from home (not temp with good reason and showed interest; not military service) flight risk (not imm status)
Military Peeps + Visitation
deployment = temp absence
tc must expedite hearing + simplify reunification
BOP on parent to show COC trying to claim prior visitation/custody orders, otherwise continuity and stability from deployment
Obtaining CPS reports
WI&C 827.10
Confidential (not privileged)
Sexual Abuse Allegations
Investigation by CPS under WIC 328
Risk of abuse to one, risk to all
False allegations - sanctions.
- recovery must be sought within 60 days of exoneration or 180 days of entry of order or judgment
Privileges in Custody Cases
• Medical Privilege – Waived when tendered (≠ tendered when responding to allegations); consent/disclosure is waiver.
o Balance with IRMO Carney footnote (ct should look@ “actual limitations” of P)
• But! Privilege protects even if the info may help determine limitations
• Psychotherapist Privilege
o Dependency → Therapist may waive privilege EXC where C invokes privilege
• If C invokes, atty cannot waive, but may assert EXC C waives it
• C must be of suff age/maturity to consent to waiver
Minors Counsel
- Appointable by court if in BIC, appointment continues until relieved
- No more reports; MC must file RFO if need something
- Access to records of C (school, medical, psych evals, etc.)
Child Preference in Custody Proceedings
• C of suff age + capacity to form intelligence preference = consid custody/mod proc.
o Testimony of C (CEC 765) – alternatives should be considered (screening, written, in-chambers, etc. – document input with suff detail, maintain confid.)
- consider C’s wish to participate, protection of C, duty to consider wishes, probative value of C’s testimony, due process rights
> 14 years - likely to come in.
If refuse - ct must state reasons on the record and look for other ways
Estrangement v. Alienation
Estrangement - C pushes away parent
Alienation - P pushes away other P from C
Child Custody Evaluations (generally)
• CCE (FC 3110)
o Evaluation must comply with CRC 5.220; submit 10 days before court consideration [if late, continue hearing]; not publishable [sanctioned if not an undue burden, etc.]
o Scope of evaluation must be outlined [IRMO Seagondollar]
IRMO Seagondollar
Evaluation scope must be outlined
Special Master - Parenting Plan Coord. (generally)
• Special Master / Parent Plan Coordinator – not orderable by the Ct; Ps must stip
o P’s must stip to it
o Must be impartial; conflict resolution is not part of the job, remain neutral
o Judge cannot relegate judicial duties to the SM/PPC [P’s can only stip to it]
Modification of C/V Orders
• Q: Do you need a change of circumstances?
• Change of Circumstances v. Maintaining C’s interest in stability
o Consistency for C = paramount importance
• Montenegro – stability/continuity, no COC with stipulated judgments
o Perm orders → COC; otherwise, absent orders or w/ temp orders → BIC
o Change of custody = COC; Stip’d Judgment or no orders = BIC
o If modification is sought and court denies, the Ct must state the reasons.
Montenegro
CC/V
Stability and continuity is important
Move Away (generally)
- STANDARD OF REVIEW: BIC + de novo review of the factors from LaMusga
- P w/ sole legal/px custody should = permitted to move; BOP to oppose is upon challenging P with de novo review under BIC (Burgess)
IRMO Burgess
BOP in a Move Away is with the parent who doesn’t want the kids to move. De novo review under the BIC standard.
Factor in Move Away Case
LaMusga Factors
• C’s interest in stability and continuity of custody arrangement
• Primary parent’s proven ability to care of C
• Significant COC indicated custody change is in BIC
• Distance of the Move
• Financial Impact on Ps
• Age of the C
• C’s relationship with Ps
• Parental relationship
• C’s wishes
• Reason for move, including good faith
• Extent to which Ps are currently sharing custody
• Noppayment of support by left behind P
• Impact on mental stability of Ps if MA is granted or denied
• Availability of special edu / medical care facilities
• P animosity and past conduct
Bad Faith in Move Away cases
Bad faith motivation of move is considered, but not determinative
Abduction Issues in Custody
• Ct can consider RISK of abduction (not imm status), including potential harm to C if abducted, obstacles to relocation/recovery.
• Consider HABITUAL RES of C (+1 yr), Hague recognition
• Other factors
o Hiding $, quitting job, child abuse, crim conviction, DV, not coparenting, etc.
• Prevention: bond, sup’d visits, limit right to get passport, notice to consulates, DHS
Custody to Non-Parent - Considerations
o P suitable to provide adequate and proper care and guidance to C (FC3040)
• BOP = C+C evidence award of custody to Ps = detrimental to C and that aware to non-P = in BIC
o Detriment to C = harm of removal of C from stable placement with person who assumed day-to-day role of parent, fulfilling px and psych needs for care and affection over lengthy period of time. [‘psychological parent’]
• Considered “de facto parent” under CRC 5.502
BOP about Giving Custody to Non-Parents
BOP = C+C evidence award of custody to Ps = detrimental to C and that aware to non-P = in BIC
Step-Parent Visitation
may grant if in BIC (FC 3101) but it must not conflict with 2Ps visitation rights; deny if protective order against the step-P.
o Remember that a step-P could possibly qualify as a de facto parent
Grandparent Visitation (Ps still living)
o Findings: preexisting relationship btw GP/C ∆ visits in BIC
o OK when Ps alive if in BIC for visit
• Rebuttable presumption that not in BIC if the Ps object
• Visits ≠ interfere with P’s custody or visitation
o Should not grant if Ps are still married [s/b living sep/apart, 1 P absent for 1+ month and unknown location, C does not live with either P, C has been adopted by Step-P]
o Court can adjust CS timeshare, allocate travel and other expenses
Surviving Relative Visitation
o “Qualifying Relative” – children, siblings, parents, grandparents
o if C is subsequently adopted – visits with surviving relative terminate
Former Guardian Visitation
C has fundamental right to maintain a healthy, stable relationship with a person who served in a sign., judicially approved parental role. (FC 3105)
Parentage - Jurisdiction
Personal and SM Jx where had sex in state or used assistance reproduction
Parentage - Where to Bring a Case?
where C lives or is found, adoption occurred, or where probate proceeding is being held if F is dead.
Parentage - Who can Bring a Case?
C, M, Presumed F, DCSS, adoption agency
Parentage - When to Bring a Case?
Anytime to establish non-existence; w/in 2 years to establish existence of relationship
Parentage - Presumptions
- HW Presumption (during M or w/in 300 days of M termination)
- Presumptive Parentage - holding C out as own, receiving C into home
Parentage - Genetic Testing
- w/in 2 years by P
- ct may order at any time if needed
Meet and Confer Requirements - Code, Generally
CRC 5.98
• Ps must M+C before pretrial or trial and exchange docs you intend to produce at trial, EXC evi for impeachment and rebuttal
Evidentiary Hearings - Code, Procedure, Factors in Determining if Evi Hearing should be given
CRC 5.113
• Should be requested by a filed request for evi hearing, factors set forth in CRC 5.113 (“live testimony”)
• Factors for determining evi hearing –
o Substantive matter is at-issue (C, V, support, property, etc.)
o Material facts in controversy
o Live testimony necessary
o Right to XE anyone submitting reports/information to the Court
o Other factors “just and equitble”
Trial Brief - Code and Inclusions, Filing Date
CRC 5.394
• Include: Statistical facts, brief summary, statement of unresolved issues, statement summarizing contents of any appraisals or reports to be offered, witness list and anticipated testimony, legal arguments, other matters determined by the judge.
• Serve a minimum of 5 court days before trial or evidentiary hearing
Bifurcation
- explain
- issues for bifurcation
MARITAL STATUS
o Requirements – PDDs sent, sufficient declaration, pension plan joinder
o Status only determination / Ct retains jx over all other matters
o Watch for loss of Soc Sec Benefits for M < 10 years
OTHER ISSUES
o Bifurcation of other issues is encouraged in an attempt to resolve/settle case
o Other Issues Bifurcatable = Validity of Agmts such as PMA, DOS, Date of Valuation / Alt Valuation, Property Characterization, Business GW, Custody/Visitation, Atty Fees, Division of Property and Debt
Ways to Secure WITNESSES; timeframes
Subpoena – personal appearance requires “personal svc w/in reas time” (CCP 1987) – 10 days for in person service, 20 days in person w/ documents
o Must be personal service, not upon the atty
Consumer Records – Motion to Quash requires a hearing so make sure you have plenty of time to get the docs when developing your strategy.
Motions in Limine - Generally
Generally: Motion to exclude evidence from being offered at trial, brought before trial but the timing can be loose. If granted, precludes introduction of evidence at trialand resolve critical evidentiary issues @ outset.
Motions in Limine - Requirements and Examples
Requirements – Writing, including an MPA, filed before the date set in Local Rules
• Examples: Failure to disclose witness lists, expert opinions, undisclosed exhibits, valuation date testimony where no motion for DOS valuation, bar evidence that should have been produced in discovery or evidence that was excluded by a discovery sanction order.
Authenticating Evidence
RASH rqmt for written documentation – Relevant, Admissible, Secondary Ev., HS
o RELEVANT - All evidence must be relevant – logical connection between evidence and proving/disproving a question at issue [brick in the wall]
o AUTHENTICATION – is writing what it claims it to be?
o SECONDARY EVIDENCE – Can you use a copy or oral testimony w/o producing the actual original document?
o HEARSAY – OOCS being offered for the truth of the matter asserted?
Hearsay - Computer Information
Computer generated info ≠ HS as there is no statement by the computer ; E-information (electronically stored) = HS and must have a HS EXC
Refreshing Recollection - How? Pitfalls?
Refreshing Recollection – any doc can be used to refresh recollection but must be showed to OPC and cannot move into evidence (Evi 771), although OPC can use and move into evidence.
o Illegally obtained evi = ok but tricky as sanctions can be imposed, including denial of relief and motion, prohibiting evidence, etc.
• FC 2202: evi precluded by PC 630 (eavesdropping) = excluded in FL EXC DVPa proceedings (where recording is permitted)
HS - Doctrine of Completeness
have to admit the entire sentence if you admit part of it; can be other statement or document to explain it – such as email thread, etc., although it cannot be unduly timely consuming to the Judge/Ct
Burden of Proof - Who and What?
Beyond a Reasonable Doubt
Contempt
Preponderance of the Evi
Most cases, including civil cases unless statues or social policy set forth a diff BOP
Clear + Convincing Evi
Social policy ∆ there is a greater interest in allowing a person to prevail. Requires a showing of unhesitating asset of all reasonable minds.
Typically – property title cases, custody/visitation to a non-parent, SS payable despite remarriage
Judicial Notice - Types
Types – Mandatory v. Discretionary
o Mandatory – CEC 451 – No notice requirement
o Discretionary – CEC 452 – Must give notice
Opinion Testimony - Okay when?
Lay Person = OK as to px condition, knowledge of own disease, “drunk, on drugs,” emo expression, no weird or lewd behav by a P, value of prop owned by P or their spouse, rental value testimony by owner.
Expert Testimony - Qualification and Where appropriate?
Qualification – CEC 720 – special knowledge, skill, training, exp; voie dire
Testimony must be beyond the common experienceˆ and is offered for consideration, not for the truth.
o SARGON ENTERPRISES – Ct = gatekeeper re experts and can examine the logic of the expert and exclude it if it is not logical. Information should be objectively quantified, logical common sense supportable reasoning and the conclusion supported by reliable data, not speculation.
Sargon Enterprises
Ct can examine the logic of the expert and exclude it if not logical.
Privilege - Analysis
- Existence of Privilege. Is there a privilege? If so, is there an EXC?
- Assertion of Privilege. Assert it ASAP (timely, clear and completely)
- Waiver of Privilege.
• Failure to assert timely, signing docs such as consent, disclosure of priv info without coercion; ≠ responding to allegations/their tender - Tender of Condition
- Statutory Excs
Privileges in Family Law (list)
- MD
- Therapist
- Atty Client
- Work Product
- Spousal Privilege
- Trade Secrets
Atty Client Privilege - explain
Must est AC relationship exists between A-C. Is there a reasonable believe that Atty is an attorney to qualify (jailhouse atty)
• Must be a CONFIDENTIAL COMMUNICATION – in course of relationship, made with the belief it will not be disclosed to anyone. Presence of 3Ps, not essential to litigation = waiver.
• EXC: Crime-fraud, Breach of Duty claim, Attesting Witness, Joint Retention of Atty, Dangerous Client
Work Product Privilege
Excludes looking @ file; must determine what is WPP (but can’t see it all to determine) and cannot be vitiated by a confidentiality agreement.
Spousal Privilege - What and When?
new spouse hiding behind P in a proceeding against ex-spouse; privilege eroded on issues re undivided prop., SS/arrears, enf issues
Trade Secrets - Code? What?
(CEC 1060) –‘ees contractually bound to maintain secrecy, can enter into confidentiality agreements to protect against disclosure
Offers of Compromise
OC = admission of fault ∆ privileged and not admissible CEC 1152
o Stmts must be evaluated
o Connected to offer ≠ admissible; independent of offer = admissible; listing of assets ≠ offer, public policy for promoting settlement ex atty fees FC 271.
Discovery @ Trial - Depos? Rogs? Admissions?
- DEPOSITIONS – log depos and discovery before trial, verify corrections made; P opponent can use deposition for any reason, nonparty can use for impeachment or substantive proof if deposed individual lives 150+ miles away or unavail (and tried)
- INTERROGATORIES – ques/answers admissible against responding party, provide copies of both to ct/counsel before reading ques/answer; all becomes pt of evidence
- ADMISSIONS – admissions are conclusively established against admitting P, no further foundation is needed
Trial Motions - List
[mistrial, CCP 631.8, motion to reopen case in chief, motion for new trial, motion to vacate/new judgment, motion for entry of judgment, motion to set aside (473(B) and 2120]
Mistrial - What? Examples? Procedure?
MISTRIAL – Irregularity in the Proceeding
o Exs: Illness of Judge, J cannot complete trial, atty misconduct, atty violation of CRPC, illness of material witness, willful concealment of evidence, improper eavesdropping on confid comm., substantive ex parte comm. with client
o Examine: Ex parte comm. administrative or brief? Misconduct isolated v. repeated? Misconduct purposeful? Extent of prejudice?
Motion: CCP 631.8
- what?
- procedure?
CCP 631.8 MOTION – Weighing of evidence and proponent has failed to meet burden
o Procedure: After one side has put on their evi., either side can move the ct to weigh the evi and order in favor of the moving party. MPA is good practice but not required; point to salient points in testimony transcript if possible.
o If the court denies “at this time” – you better be ready to have rebuttal evi.
o Distinguish: CREDIBILITY FINDING – asking the court for a credibility finding on a particular witness (drawing inferences from conflicting evi. In ruling)
Motion for New Trial
- reasons
- procedure
Reasons: Improper denial of continuance, refusal to allow amendment to pleadings, P not joined (but should’ve been), accident/surprise that ordinary prudence could have guarded against
Procedure: Timely; w/in 15 days of mailing of NOEJ; 180 of entry of judgment (if there is only a minute order and no judgment was entered)
• Cannot extend deadlines by stipulation
• File MPA
• Get a ruling w/in 60 days or motion is DENIED (remember: Cloninger)
Motion for Entry of Judgment
- generally
o Getting court to enter judgment based upon all factors, including voluntaries, time to speak with atty, promises made, false statement, influence of drugs/alcohol, free and voluntary waivers, etc.
o Make sure a ct reporter is there OR a detained minute order which includes that the Ps entered into it freely and voluntarily
o Cannot include terms the Ps did not agree to
Motion to Set Aside
- 2 grounds, explain both
Grounds: (1) 473(B) [atty mistake]; FC 2120 [other reasons, below]
473(b) – atty mistake, inadvertence, surprise or neglect
• 6 mo timeframe, mistake of fact or honest mistake of law; requires dec showing legit mistake
• Inequitable order ≠ set aside simply because it was inequitable at the time that it was made
2120
• fraud (extrinsic v. intrinsic) superceded by 2120 after 6 mos
• must show movant will materially benefit from granting relief
o Miscarriage of justice, like failure to disclose asset
• Grounds for 2120: Actual fraud (1 year SOL), perjury (1 yr), Duress (2 yrs), mental incapacity (2 yrs), mistake (1 yr)
Statement of Decision - generally
state controverted issues, timely filed
Motion for Reconsideration - timeframe
w/in 10 days
Set Aside Vol Paternity Dec - timeframe
bring within 2 years
Fitness of Parent in Juv Ct
PRESUMPTION of P fitness in FC, but not in JC – C can be removed, goal protect C
• Forum for restriction of parents and removal of C with finding of abuse, neglect or abandonment
Function of Juv Ct
Forum for restriction of parents and removal of C due to abuse, etc.; remedial in nature.
Juv Ct v. Probate Ct
Juv Ct takes C aways because of abuse with the hope of reunification. They are determining issues of fitness in Juv Ct.
Probate ct is more for adoption and guardianships. There are fewer services, less reporting and more interest in finding permanency and stability for the child. No case mgmt, reunification ≠ priority, not right to atty, no real investigation, no licensing rqmts, no mandatory timelines.
Juv Ct - CPS and Overview of the Start
Referral from mandatory reports or voluntary calls → CSW assessing needs of kid, home investigation and try to make reasonable efforts to avoid removal – including a Vol. Family Maintenance plan which can be signed by the parties and give SW 60 days to investigate.
Investigation – “substantiate” “inconclusive” or “unfounded” via letter to P
o “substantiated” → reported to the DOJ; others likely not. If reported, goes into DB of reports of abuse by Dept Soc Svc (DOJ) and can show up in job search, etc; removing name = hard
Juv Ct + Confidentiality
Juv Ct = • Confidential, but under WI&C 827.10, peeps have access to file, including parents, cts., judges, CPS, etc.
Voluntary Family Reunification Contracts
valid 180, vol put C with friend or family member, involves a case plan for the parent and not a judicial determination.
Dependency Proceedings - General Steps
Dependency Proceedings in Juv Ct
- Petition filed
- Detention hearing
- Jurisdictional hearing
- Dispositional hearing
- 6-month review
- 12-month permanency hearing
- 18-month permanency hearing
- 24-month permanency hearing
- WI&C 366.26 hearing
- Review of Permanent Plan
Dependency Proceeding - Petition and Detention
- what
- process
Petition filed and jx is established in petition; county counsel must outline and establish their case; people get attys. If proved at this point, C is removed and placed with a relative or non-relative family member w/ good moral character, no crim convictions, home inspection
o Ps can argue return of the C but the burden is low for the Co. b/c there is so little evidence at this state
o Ps can get a visitation order (supervised / unsupervised)
Dependency Proceeding: Indian Cs
f P is a member of a federally-eligible trib – ICWA applies w/ higher BOP, higher level of placement, specialty courts, etc. Notice to tribes, priority placement with tribal family or non-family member of the tribe.
Dependency Proceeding: Jx Hearing
- what?
- what must be shown?
- effect of jx?
Examine: truth, allegations and ct takes JX over the C
Preponderance of the truth standard for County to show:
o Intentional Harm – substantial risk of serious px harm
o Negligent Harm – failure to protect, inadequate supervision, no food, inability to care for mental, DV, substance abuse, emo abuse (Ps in ‘alt universe’), sexual abuse, wrongful death of another C through abuse/neglect, abandonment, freed for adoption, cruelty, sibling has been abused.
Effect of JX: Ct has control over C/V/Pat/non-crim ROs, juv custody matters; FC proceedings stops relative to C
Dependency Proceeding: Placement with Noncustodial Parent?
Place, close and do a juv custody order? Or place and do reunification? Not really. Examine BIC of the child: in BIC to go with noncustodial parent? Not always.
Dependency Court: Visitation Orders
must be made b/c visitation is integral, even if it s neutral/therapeutic EXC if abuse (verbal and emo) was so awful.
Dependency Court: Denial of Family Reunification Services
- when okay?
OK where severe sexual or px abuse, the Ps failed or refused to participate in treatment (where accessible and available)
• This is not a termination of parental rights but denial of a case plan and reunif. svc.
Dependency Court: Review Hearings
- when and what?
- return of C?
HELD: 6 months after start and each 6 thereafter
o 12 mo permanency hearing – if C in foster care for 12 months, ct can continue the proceeding if there is a “substantial probability” C will be returned to px custody of one P. If not, then no need to continue.
o 24 mo hearing only if (1) recent release from incarceration or substance abuse tx and substantially probability C will be returned to px custody of P AND it would be in BIC or (2) reasonable services have not been provided.
Keep an eye out for C < 3 years or sibling groups with C < 3
RETURN:
Ct MUST return C unless DCFS can show risk of harm (safety, protection, emo., etc.) if returned to the Ps; examine participation (non-part) in the plan
MOTION TO MODIFY (under 338) can be made if return is not happening; BOP to show COC + BIC
Dependency Court: Permanent Plan
AB12 allows C to stay in the system until 21, receiving services
Permanent Plan = LT foster care or legal guardianship or non-finalized adoption; reviewed every 6 months to determine how C is doing, if more perm. plan available, issues, needs.
Probate Ct and Guardianships
- generally
Generally – Guardian steps into shows of parent without terminating their P’al rights
o P can always as for guardianship to be terminated; happens if BIC found
o Stability is KEY
o G = legal custody for health, edu., general well-being, etc.
o Annual report request re: C
Probate Court - what is it like?
no case mgmt, reunification ≠ priority, not right to atty, no real investigation, no licensing rqmts, no mandatory timelines.
Parental Objections to Guardianship?
Ct must make a finding that placing C with P would be detrimental and that BIC is met by placing with guardian
Temporary Guardianships
OKAY with 5 days notice of hearing BUT can waive notice requirements for “good cause” – DV, txs to steal child. Terminate within 30 days unless permanent guardian is ordered
Termination Events for Guardianships
18, emancipation, BIC Ct Order for return of C to P, adoption, M, death
Adoption is possible when?
Adoption possible if 2+ years out of custody of P and P ≠ major effort to provide for or see the C
Termination of Parental Rights
- when
- what is considered
Termination for ADOPTION
o UNFITNESS is an issue. Past unfitness is okay, doesn’t need to be current
o Look @ BIC for stability/permanency which is a better standard of termination
Must be C+C evi of unfitness or detriment
• Finding of substantial danger if C not removed = finding of detriment
P’s must show that relationship between P/C is “so strong” ∆ rights should not be terminated and adoption should not be permitted.
• Elements: (1) regular contact/visits, (2) substantial and emotional connection, (3) P-C relationship promoting wellbeing of C that outweighs the benefits to C of permanency and stability of adoption
Adoption: How can Ps show adoption should not proceed?
P’s must show that relationship between P/C is “so strong” ∆ rights should not be terminated and adoption should not be permitted.
Elements: (1) regular contact/visits, (2) substantial and emotional connection, (3) P-C relationship promoting wellbeing of C that outweighs the benefits to C of permanency and stability of adoption
Reinstatement of Parental Rights in Probate Ct.
OK if C is not legally adopted and they are a “legal orphan” – C can petition for it
o P has been rehabilitated
o C not adopted within 3 years
Options to Litigation
Duty to explain options to litigation ∆ creating informed consent; explain before fiing
Options: self-resolution, ADR, litigation, arbitration, private judges and trials, mediation (private party, centers, etc), conciliation court, special master, parenting plan coordinator, etc.
o PRIMARY DISPUTE RESOLUTION – aka Consensual Dispute Resolution
Mediation - Generally
impartial 3P facilitates comm. and negotiation and promotes voluntary decision making by the parties to the dispute
Mediation - Roles of Mediator
Host, Teacher, Referee, Reality Tester, Emotional Support, Negotiation Coach, Idea Generator/Brainstormer, Scrivner, Nudge.
Mediation - Mediation Agenda
o Explain Med Proceedings
o Explain personal conduct and separation of issues
o Outside session rules
o Temporary parenting and financial issues
o Perm property issue and financial issues
o Assess parenting progress
o Draft agreement
Mediator’s Contract - include?
Confidentiality, Admissibility-Privilege, Mediator Roles, Ground Rules and Financial arrangements
Mediation - Confidentiality Sources
Med Contract, CEC 1115-1126, Case law
CEC 1119
total confidentiality in Mediation
Foxgate Homeowners
mediator barred from speaking about what occurred in mediation, even if Ps acting in bad faith, etc.
Cassel
AC communications are inadmissible even for malpractice and fee disputes if done during the course of mediation. Privilege is VERY broad and absolute. Designed to provide max protection for privacy of comms in med.
Effect of a Mediated Judgment
Harder to set aside.
Mediation - Waiver of Confid.?
CEC 1122
Yes, possible, but requires waiver by all, including mediator.
Documents in Mediation
CEC 1123
Cannot use mediation to immunize documents from production. Reports and memorandum = confidential, not documents.
Mediators and Testimony?
Not able to testify EXC IRS, Fed or Crim Cases
Mediation - Termination by ..?
Ends @ (1) agreement, (2) mediator says it ends, (3) P notice of end and (4) no contact with mediator for 10+ days (really only for 1-day mediation sessions)
Collaborative Practice
- generally
- team members
- nature of process
Generally – interdisciplinary process for resolving family issues with GF nego on a voluntary and cooperative basis without litigation; voluntary, Ps have attys (no neutral), formal written agreements that no txs of litigation, collaborative process.
- Team consists of attys, coaches, neutral financial experts and child specialist
- Confidential Process – if fails, all attys must w/d (facilitates honesty, gf, confid.)
Collaborative Process - generally
Negotiations = transparent, all parties present, all information available
Interest Based Negos – identify goals + interests, look for soltns that address goals
Collaboration: Good client attributes
o Personal respect for other P
o Recognize and respect OP’s goals and interests
o Ability to be open/transparent
o Courteous and dignified in meetings
o Self-assertive and participatory
o Ability to compromise EXC vital interest and not to “get process over.”
Collaboration: BAD client attributes
o Mental Health issues o Substance Abusers o DV / Dominators and Controllers o Dishonesty @ fundamental level o Unable to take responsibility for own decisions o Lack of follow-through on commitments
Collaboration Coaches
- qualifications
- role
MFT, PhD or LCSW with collaborative training and member of IACP and local group
Role: emotional issues, establish goals, evaluate settlement options, resolving parenting issues, dev parenting plans, guide process, situational assistance
o NOT psychotherapy [lt counseling]; guidance role / situational assistance
Collaboration Financial Specialist
- qualifications
- role
CFP, CPA or sim., collaborative training and member of IACP and local group
Role: assemble family finances, analyze income and other information for PDDs, prioritize financial needs, assist in evaluating financial conseq., educate, analyze tax consequences, validate emotions around finances, participate in guiding process
Collaboration Child Specialist
LMFT, PhD or LCSW, collaborative training, active in IACP/local group, specialization in children’s issues re divorce
Role: ON REQUEST – assess problems, need, issues of children and report back, assist coaches in development of a parenting plan
Stages of Collaborative Practice
STAGES FOR COLLABORATIVE PRACTICE
- Contracting + Formation of Team
- Elicitation of LT goals
- Information Gathering
- Dev specific, concrete ST needs and goals; framing issues
- Dev options for meeting needs and goals
- Negotiate resolution
- Agreement + Closure
Essential Docs to Start Collaborative Practice
Essential Docs: Statement of Principals and Guidelines; Collaborative Practice Agreement; Stipulation and Order for Collaborative Process
Collaboration: Info Gathering
- describe
- Open and transparent; no discovery
- Work directly with joint neutral who prepares report
- Determination of other information/reports needed, choose joint expert
Confidentiality in Collaborative Practice
CONFIDENTIALITY IS TRICKY IN COLLABORATIVE PRACTICE.
Not directly covered under mediation confid (CEC 1119-1128) because mediation requires one party to be neutrally facilitating comm. Not also because no bilateral privilege under AC priv or psychotherapist priv (since later is not doing diagnosis, just guidance)
SO! GET CONFIDENTIALITY AGMT BY THE PARTIES THAT IS SIGNED BY THE JUDGE.
Private Dispute Resolution
- benefits
- types
Benefits:
Privacy, reduced ct resources, risk of judge w/o family law experience v. private judge
Types: Mediation, Judge Pro Tem, Discovery Referree, Arbitration, etc.
Meaningful choice: how much $ you spend on PDR v. litigation v. keeping for Ps?
PDR: Special Master
- utility?
- role development?
Helpful for division of personal possessions, bills – sometimes in high conflict cases or with difficult financial matters or child custody matters
• Not the same formality as a trial, generally makes recomm. under 638 and 639
Carefully define role/authority as to what is binding v. recomm.
Borderline Personality Disorder
- Characteristics
- How to Handle Client
Characteristics: instability in interpersonal relationships, rapid/intense emotional reactions, unpredictable mood swings, fear of abandonment, diff separating own needs from kids, needy/manipulative, freq need for attn / “emergencies”
Dealing with Client with BPD: big retainer, clear boundaries
Histronic Personality
Characteristics: dramatic need/center of attn, distortion of reality, no attn to details, need reassurance and validation, sensitive to perceived rejection
Children: Hard to go through disso, C oftentimes suffer with these kinds of Ps
Psychological Injury to C
PSYCHOLOGICAL INJURY TO C
Types: depression, fear/worry, w/d and clingy, behavior problems, academic issues, guilt, anxiety; generally surface in school due to negative home situation
Strategies to Reduce Conflict
- Teach Ps to recognize, accept responsibility
- “walk away” from conflict
- Honestly answer C’s question and redirect
- Minimize conflict @ exchanges
- Parallel parent when needed
- Communicate via email/text or a diary
Child Custody Evaluation
- objective
- collateral sources
Objective information to assist ct., parents, kids and voice for C
• Ct can order, generally by stipulation; specify the purpose of the evaluation
Do: Establish scope, obtain informed consent, look @ collateral sources of information, mechanisms for gathering information (i.e.: testing)
Collateral sources = names, agencies. Should have consent of both Ps to speak to outside people. If one objects, evaluator may not wish to chat with them but the proponent may wish to file a motion with the court to have the evaluator do so.
BIC Considerations in CCE
Love and affection, preference of C, time in stable home, ability to give guidance, necessities of life, plans for care/upbringing, permanency, conduct relative to parenting
CCE Parent Interviewing Areas
empathy for child, judgment for daily life, promotion of autonomy, shielding kid from conflict, modulation of affect/behavior, enhancing relationship w/ other parent, care taking abilities, appropriate expectations, nuturing/affectionate behavior, residual emotions from disso, ability to protect kid from abuse/neglect, awareness/knowledge of dev needs
Developmental Context for C
- Infancy – special needs
- Preschool – personality
- Elementary – attachment
- 12+ years – parental ability
Interviewing Children
- preferences
- balancing test
- methods
Preference 14+
Balance: competency of the C to exp pref v. stress v. method for interview
Method: neutral tone, respect choices, warm up questions, vary who brings the C to interview (P1, P2, P1, P2), watch for stress/coercion
Child Witness
- FC Section
- Considerations
FC 3042
Ct SHALL permit unless testimony not in BIC, considering relevance, if appropriate, alt means available
o Other areas to consider pref/test.: rts in school, consent to urg med tx, outpatient mental health tx
Harm in Testifying? Lack understanding, possible adverse psych conseqs, possible consequences @ hands of P from testifying
Gatekeeping - 2 Types
Facilitative (good)
Restrictive (bad)
Relocation Cases
- factors to consider
Examine: reasons for move (express and inferred), parental stability, emo. Well being of C, distance/logistics, motivations of moving party (advancing or hurting BIC?), impact of move on relationship with C, C’s wishes, etc.
Estrangement in C
- explain
- where does it occur
Child pulling away from P for some reason
Occurs: P emotionally unavailable, tx of violence to C or OP, abusive, erratic/unpredictable, neglectful (constant cancellations), narcissistic parent (inflexible, focused on other life, etc.)
Alienation of C
- explain
- where does it occur
P is using C as conduit for own neg emo re: OP
Occurs: denigration of OP, suggestions OP doesn’t care, highlight OP’s flaws, emotional manipulation (over-involvement, “buddy”/confidant), selective reinforcement, over-empowering C to make adult decisions
Psychological Aspects: Ethical Issues
No pressure to C to state custodial preference (CRC 5.220(h)(7))
Not to exceed role in context employed (CRC 5.220)
Protect the C Witness
Avoid unnecessary multiple interviews, especially w/ C interview (CRC 5.250)
Confidentiality – esp w/ joint custody and psychotherapy of minor and one P wants therapist to testify. Who holds privilege? Do both Ps have to consent to testimony? - EXC: legally mandated reporting despite confidentiality = child protection, elder/disabled abuse, suicide risk or threats of harm
Avoid CONFLICTS OF INTERESTS (actual or perceived), not mix roles, etc.
Parenting Coordinator
- what?
- confidential?
- Skills needed
- Doesn’t include
non-confidential, non-adversarial dispute resolution mechanism for continuous focus on BIC to implement order or parenting plans, help Ps comm. better, plan and make dec.
- Goals: reduce conflict to help C/Ps, make timely decisions re: needs of C but NOT DECISION MAKING POWERS (IRMO Matthews – mental health profs should not be given decision-making power, usurps ct’s power)
- NOT CONFIDENTIAL
Skills: med/arb skills, working with Ps in high conflict, dev/psych needs of C, knowledge of legal process [remember they are mandatory reporters*]
o * legally mandated reporting despite confidentiality = child protection, elder/disabled abuse, suicide risk or threats of harm
Does not include: psych eval, psychotherapy for one, financial dispute resolution, legal advice, continue when conflict or prof judgment is threatened
NonMarital Relationships - Types
Cohabitation
RDPs
SS Marriage (married, but ….)
Marvin Claims
- generally
- basis for recovery
- barred recovery
GENERALLY: Civil action to enf express or implied agmts btw Ps based on contractual rights OR suits for quantum meruit value of non-sexual svcs OR claims of fraud. Can be a FL proceeding if the parties subsequent RDP or marry.
o Implied K = VERY difficult to establish; most CL ≠ support it post-Marvin
o Can be asserted against P (even if M’d to another) or their estate (as a creditor claim)
≠ able to get division of property, BOFD claims, SS, vocational rehabilitation (too much like SS), loss of consortium claims, damages for NIED, wrongful death (BUT RDPs can seek wrongful death claims)
Marvin Claims and Sexual Services
Sexual Services: Sexual relationship ≠ defeat claim under Marvin where evidence K based, at least in part, on something other than sexual services.
Marvin Claims - Cohabitation Requirement
FT cohab not required if PT is part of custom, convenience or geographic considerations prevent
SOL on Marvin Claims
begins toll @ 1P stops performing under agreement OR 1P leaves the other
o 4 years written o 4 years constructive/equitable trust o 3 years fraud (of discovery of facts constituting fraud) o 2 years oral / implied o 2 years QM services w/o writing
Marvin Defense
- Laches
2. Statute of Fraud
Laches defense to Marvin claim
You waited too long.
EXC to application of laches = Doctrine of Estoppel – don’t apply the SOL if the D induced the P to delay filing of suit
Statute of Frauds defense to Marvin claim
may not be applied in equity (prevent unjust enrichment)
APPLIES:
• Not able to be done w/in 1 year
• Requires P to answer for debt of another
• K for sale/lease of property over 1 year
• Agmt to create joint tenancy
• Contract to create a trust for real property
Marvin + Subsequent M or RDP
≠ extinguish Marvin Actions
o Consolidate actions
o Marriage → New rights upon M ∆ may need an agreement to terminate the Marvin Agmt or specify rights and obligations post-M.
o RDP → Post-Registration Agreement good idea to have clear understanding of rights and obligations, especially if Marvin agreement says it carries through.
RDP
- governing law
- who can RDP
- rights
- dissolution
RDP ACT
Same sex over 18 not related by blood OR opp sex over 65 and one/both eligible for SS
Same rights/resp as M’d people, including re c/v, support, etc.
o Taxability of RDP SS – taxable only in CA. Windsor SS M case applies only to marriages, not SS RDPs
o Pension benefits under Fed Law - questionable
Dissolution of RDP Status
o Only one RDP @ at time; Must dissolve the RDP; if M/RDP, should do both
o No residency reqmt, no 6 mo waiting period
Putative RDP Status
- requirement
Good faith subjective belief RDP w/ objectively reasonable that registration was valid
IRDP Ellis
P claiming Putative RDP status must have the good faith believe. If one P knew that there was no filing or no actual RDP, can’t claim to be putative.
Burnham v. CalPERS
RDP must be valid before death
Validity requires signature, acknowledgement and filing
RDPs and PMA
Okay
Best practice = postnup after registration due to fiduciary duty applying to all contracting, negotiations, transmutation issues, etc.
SB 54
Statutory CA recog of SSM from another state so dissolution can be done here.
FC 308
Equal Dignity - SSM from another state is VALID in CA if entered into before 11/5/08
US v. Windsor
- history
- holding
- what Windsor doesn’t do
- what it does do
$/DOMA Case
TP denied tax deduction on fed taxes for SS payments in a SS couple
Held:
- Heightened or intermediate scrutiny ∆ must be a substantial gov interest.
- DOMA = unprecedented intrusion into area of State regulation
DOES NOT DISALLOW STATES FROM BANNING SS MARRIAGE
DOES OPEN DOOR TO FEDERAL BENEFITS TO VALIDLY MARRIED SS COUPLES EXC THAT IT IS UNCLEAR AS TO WHETHER OR NOT FEDERAL BENEFITS WOULD BE APPLICABLE WHEN THE PS MARRY IN STATE THAT SUPPORTS SS COUPLES BUT THEN MOVE TO A NON-RECOGNITION STATE.
• BENEFITS: federal taxes, social security, FMLA benefits, immigration, bankruptcy, federal employee benefits, veteran’s spousal benefits, medical spousal protection, welfare, federal student aid
Taxability of SS
- code
- what is covered under code
TAXABILITY – IRC 215 – deduction to payor ∆ taxable to recipient/payee so long as it complies with IRC 71 (alimony paid through disso/sep instrument)
o Disso or Sep Agreement = decree of disso or written agmt incident to divorce decree, written sep agmtn, decree requiring SS (like temp support order)
Tax Deduction Types
Above the Line Deduction – adjustment to gross income [always better]
v.
Below the Line Deduction – deduction to the AGI
Arbitage
- what is it
sometimes – by increasing the amount of support, it yields a savings to both parties due to the tax brackets and deductibility
o Example: 2k SS pymt from A to B.
• If non-deductible – costs A $2k to give B $2k
• If deductible – Assume A in 35% tax bracket, B in 15% tax bracket → increase payment to $2.7k costs A $1,755 to pay (2.7x.65) and
CS/SS payments during Sep (pre-disso filing)
IRC 71 – payments post-sep must be pursuant to written agreement.
• Can opt out of IRC taxation of SS payments but must be VERY clear in any agreement as to the Ps understanding
Pre-disso, living together and paying SS – not taxable, not deductible
IRC 71 ≠ apply to CS portions (which are not taxable, not deductible)
LUMP SUM OF SS AND CS – IF YOU CAN’T TELL WHAT IS CS V. SS, THEN IT ALL GETS TREATED AS SS
SS and Death
- code
- Alt payee
- Atl payor
FC 4337 (SS terminates, by operation of law, upon death of either P)
SS terminates on death; MSA, etc. should not provide for SS beyond death
• Substitute payee is not okay
• Substitute payor is not okay either and ≠ claim deductibility of SS
Front Loading SS Issues
- good or bad?
- called?
- when captured?
BIG TRAP – giving more $ at the outset to allow 1P to educate, etc. Considered EXCESS ALIMONY PAYMENTS (excess SS paid in Y1 or Y2 post-sep)
Treatment: Payor includes excess in his income in Y3, Payee claims deduction in Y3
Captured for Y1 or Y2 post-sep payments
Exceptions to front loading SS
EXCEPTIONS to EXCESS ALIMONY PAYMENT TAXATION SCHEME:
- Pymts cease by reason for death or re-M
- Payments are temp order
- Fluctuating payments due to fixed portion of business or self-emp income
Excess Alimony @ Y1
- calculation
Y1 EXCESS: Y1 less Average (Y2, Y3) + $15,000
• Example of EXCESS IN Y1: MSA $8k/mo in Y1, $1.5k/mo Y2-8. HOLD: Y3 post-sep, H includes excess pymts in his income, W gets an ABL deduction. ∆ Excess payments = Y1 payments ($96k) less AVG pymts in Y2 and Y3 (18k) + 15,000 ∆ $63,000 income in Y3 to Payor
Excess Alimony @ Y2
CALCULATION OF Y2 EXCESS [Y1 analysis yields nothing]: Y2 over Y3 + $15k
Example of EXCESS IN Y2 – $36k/Y1, $36k/Y2, $18k/Y3. ∆ 36k (Y2) less Y3 (18k)+15k = 3k
Dependency Exemptions
- 2 types
- QUALIFYING CHILD [C, step-C, grand-C, sibling with same principal abode under 18/24 (in college)]
- QUALIFYING RELATIVE [adult family member not working and claimed as a dependent by the working spouse], gross income < certain amount and TP is paying at least ½ of their support; ≠ if violates local rules (watch SS couples)
Shifting of Qualifying C Exemption
OKAY if
- C received at least 1/2 of support from non custodial parent
- Custodial P signed Form 8332
Cannot be a conditional transfer of the qualifying exemption (i.e. “I will give the credit to you if you are current on your obligations”)
Phase out of Qualifying C Exemption
If AGI AGI exceeds “applicable amount” (300k/joint, $250k/single), the deduction phases out at 2% per $2500 that the AGI exceeds “applicable amount”
Property Division
- code
1041 [post-1984]
Payments incident to disso ≠ taxable if w/in 1 year or “related to the cessation of marriage” (should generally occur within 6 years or your have to rebut presumptions by showing txfr was made to effect division of property owned by exs at the time of cessation of M)
Property Division and RDPs / Cohabs
- tax tx for RDPS and prop division
- tax tx for cohabs
- excs/work arounds for both?
CP is divided btw Ps and taxable
Joint property divided between Marvin cohabs.
EXCS:
• Joint titling of property ∆ “implied ownership in common” – IRS respected their property agreement and sorting of assets was a non-taxable event (Davis) – RDPS can use this logic as fed law doesn’t allow them to escape taxation
• Gift is not workable. Gifts are still taxable; +13,000 is taxable
• EXC $5m across lifetime, including death, can be nontaxable; must file a gift tax return for accounting purpose
Capital Gains Exclusion
- code
- requirements
- how often claim it
- outted spouse?
- exclusion amounts
IRC 121
Requirements: Prop must be owned + used as TP’s principal residence for 2 years or more in the past 5 yrs
o If ex-spouses retain a residence and do a deferred sale – out spouse can still qualify for the capital gains exclusion even thou s/he doesn’t have the rqmts
o can only be done every two years
Exclusion: $250k/single, $500k/joint [either P residence + both meet use requirement and neither spouse is ineligible]
• Opt Out – May opt out; may be ideal if sold house for nomimal amt, preferring to pay taxes) or if they anticipate selling another home w/in 2 year period
Property taxes in Disso
RE property taxes cannot be reassessed when RE is transferred incident to disso.
Taxation and Assignment of Income
Not taxable under IRC 1041 where one spouse is assigned a portion of the other spouse’s income (say, ½ of AR of OP’s business), but income is taxed to recipient.
Similar situation with pension income – QDRO is approved by judge and person receiving income should be taxed.
o QDRO Requirements: name/address of parties and plan, identification % paid to each, # of payments made or payment period.
o Gilmore Election – early taking of pension
o EXC: Can order lump sum which will be taxed unless rolled over into IRA (must be direct transfer from pension to the IRA, otherwise it will be taxed)
Exception to Taxability on Pension Benefit
Ct Order for lump sum which is immediately rolled over into an IRA (directly from pension administrator) and is therefore not taxed as income to the recipient
Disability Benefits & Taxation
nontaxable to disabled P, taxable to the non-disabled OP ∆ do not transfer disability benefits to the non-disabled P
Tax Deductibility of Atty Fees
- generally
- exc
- tx when deductible
Generally NOT DEDUCTIBLE
EXC
o arguing about a business – possible deduction as bus expense
o SS (cost of obtaining non-business income [ss] if you are supported spouse
o Tax planning and advise = deductible
Implications: atty must allocate bills according to services provided (obtaining SS, tax planning, etc.)
Deductions are below the line deductions and ONLY if they exceed 2% of AGI (∆ it is advisable to lump them together in 1 cal yr to increase chances of deduction)
CS
- JX
- Privilege
- Codes
TC under FLA – FC 3600 – cannot divest court of jx to award, and support is entitled to priority (contempt > DV w/ custody > CC > CS
No privilege re tax returns (no marital priv ∆ get income info for new spouse)
Helpful Codes re: JX
o FC 2950 – Ct may order reimb to 3P who provides necessities of life to C
o FC 4000 and 4001 – Ct’s authority to enforce orders, make orders
CS
- JX
- Privilege
- Codes
TC under FLA – FC 3600 – cannot divest court of jx to award, and support is entitled to priority (contempt > DV w/ custody > CC > CS
No privilege re tax returns (no marital priv ∆ get income info for new spouse)
Helpful Codes re: JX
o FC 2950 – Ct may order reimb to 3P who provides necessities of life to C
o FC 4000 and 4001 – Ct’s authority to enforce orders, make orders
CS
- JX
- Privilege
- Codes
TC under FLA – FC 3600 – cannot divest court of jx to award, and support is entitled to priority (contempt > DV w/ custody > CC > CS
No privilege re tax returns (no marital priv ∆ get income info for new spouse)
Helpful Codes re: JX
o FC 2950 – Ct may order reimb to 3P who provides necessities of life to C
o FC 4000 and 4001 – Ct’s authority to enforce orders, make orders
SS - types and showings
Types / Showing
o Temp: “need and ability”
o Permanent: 4320, MSOL
SS - types and showings
Types / Showing
o Temp: “need and ability”
o Permanent: 4320, MSOL
SS - types and showings
Types / Showing
o Temp: “need and ability”
o Permanent: 4320, MSOL
Termination of SS - Ride through of re-M
Possible with C+C evidence on payee, “all reas minds would believe support continues” must be shown]
Termination of SS - Ride through of re-M
Possible with C+C evidence on payee, “all reas minds would believe support continues” must be shown]
Termination of SS - Ride through of re-M
Possible with C+C evidence on payee, “all reas minds would believe support continues” must be shown]
SS Limitations
No SS to P convicted of viol sexual felony and disso filed w/in 5 years of conviction (no right to spouse’s pension either)
SS Limitations
No SS to P convicted of viol sexual felony and disso filed w/in 5 years of conviction (no right to spouse’s pension either)
SS Limitations
No SS to P convicted of viol sexual felony and disso filed w/in 5 years of conviction (no right to spouse’s pension either)
SS - modification showing? (briefly)
Modifiable? Yes, temp and perm generally w/ showing of “subst. change of circum.”
Support Retroactivity
- code / to when?
FC 4009 – retroactivity allowed to ct, should use if P is evading service
IRMO BARTH – retroactive to date of filing of petition
Prior order – less power to retroactively mod to date before motion filed to modify
o Mod b/c unemp – retroactive to date of service unless factors support good cause not to make retroactive
o Military peeps – special considerations
TC Considerations re: Repayment for Overpayment of Support?
Ct considers (1) amount to be repaid, (2) duration of the prior orders, (3) impact on the recipient, (4) other factors court feels are just
CS Considerations
- Codes
FC3900 – Duty to Support C
o FC 3950 – Ct ordered reimb to 3P who provided necessities of life to C
o Estate of deceased parent can be made to pay CS for disabled adult C
• NO CS during M [IRMO Wilson + Bodine] – no contempt /arrears for non-pay while M
What C is entitled to CS?
FC 4001 – What child should be supported?
o 18 or 19 if still in HS [“american field service” = like HS per IRMO Hubner]
o disabled adult C [w/o suff means to support themselves]
o School payment arrangements made by parents can be enforced if Adult C in ongoing school
Earning Capacity in relation to CS / SS
CS Earning Capacity Considerations: NEEDS OF MINOR C ARE PARAMOUNT
o Retaining and Seek Work Orders
o No requirement for “excessive hours”
SS Earning Capacity Consideration:
o Support spouse accountable for unwise financial decisions related to earned income or assets award to that spouse to make them self-supporting
• Reas rate of return on income producing assets = OK
o Should consider BIC when considering imputing wages re SS
• Imputation of earning capacity must be consistent with the BIC when imputing earning for the purpose of SS (IRMO FICKE)
“Income” for SS
- what can the court consider?
- how do we look @ income for support?
Income should be determined based upon a stable number as a reasonable predictor of prospective income.
o Must be FAIR AND REPRESENTATIVE of their normal income to comply with FC 4060 and 4064 (seasonal and fluctuating income)
o Bardzik – TC should focus on reas + representative earning and documented earning capacity
TC = BROAD DISCRETION to consider ….
o Loan amounts, tax returns, etc. can be used to determine “income” because signed under penalty of perjury
o Station in life, hx of living exps, accumulations, etc. [IRMO de Guigne]
o Other assets available for support [Mejia v. Reed]
o Investment income
o Severance – not as 1 month, but over period of time is okay
Income for CS
- look @?
- consider
- non-cash employment income?
Look @ Annual GROSS income
TC can also consider:
o Regular + recurring contributions to the paying P, including parental contribs.
o Subletting and rental income
o New spouse’s income
o Benefits received by P (free rent, etc.)
o Tax returns
o Predicable bonuses and additional income like indian gaming bonuses [If based upon perf / profitability → Smith Ostiler order]
o Stock options (amount = % of options not to exceed reas needs of C)
o Realized stock
Non-cash Employment Income - Perk ID: Ask: Legit business expense? Purely personal benefit?
o Employer Benefits to ‘ee/parent or spouse (offsetting of expenses, car/gas expenses, Costco home purchases, etc.; review Schedule C)
o Tax Free Housing
o Deferred Salary [leaving it in the business]
o Business Depreciation [Co is reserving “cash” (in theory) to repurchase depreciating asset but no one is really saving cash therefore add it back!) How much add back? All, part? Asfaw added all, but might not be fair.
Non-Income for Support
o Unrealized equity in home (but can serve as a ground for deviation)
o Inheritance (EXC: income on the inheritance)
o Fair rental value with not mortgage (but can be ground for deviation)
o Life Ins benefits (EXC: earnings on benefits can be imputed for CS)
o Undiff Personal Injury Settlement (lump sum or annuity) (means no distinction for lost wages v. loss of future earning capacity)
o Assets sold for $ and not reinvested
o Gov benefits to P – RR benefits, Veterans, Soc Sec benefits (due to retirement or disability of the NCP, but C may be entitled to benefits which should serve as a credit against the NCP’s support obligation)
o Job-related exps [uniform, parking, transportation to/from work]
Calculation of SS
- temp
- perm
Types of SS
o TEMP SS – need/ability; can be based upon DM report
o PERM SS – DM calc ONLY for purpose of calculating net dispos. income of Ps
Calculation of Temp SS – TSS designed to preserve the pre-separation status quo; any amount orderable based upon needs and ability; generally DM report done.
Calculation of Perm SS – up to trial discretion, balancing of factors in FC 4320
o Ct should consider
• Reas need for retraining and education to get marketable skills
• Payor’s income
• Burden of imputing earning and BIC
• Gavron warnings / Richmond orders REMEMBER FL-180 doesn’t include Gavron advisement now.
Imputation of Earnings
If impute earnings, the Ct has to state WHEN the Ct believes future emp will occur + what the Ct feels is an appropriate timeframe for self-supportability
o Analysis – Skill Level + Opportunity to work
o Can impute for Ps caring for children preschool and above
o Capped at reasonable work regime – not able to force OT or 2nd job
o Career change ≠ proper basis for ignoring past earnings or earning capacity
Ability to Earn / Ability to Pay
Ability to Earn / Ability to Pay
o Ability to Earn v. Ability to Pay is viewed differently based upon payor/payee
o 4320 Factors and Analysis:
1. Existing earning capacity of recipient
2. Marketable skills or need for retraining
3. Impairment by reason of “domestic duties”
4. Contribution to edu training or career
5. Payor’s ability to maintain the MSOL
6. Ability to pay support, considering earning capacity of payor
7. Payor’s unearned income, assets and standard of living, including unrealized value of stock, historical use of assets for support, business interests/assets/deferred compensation, etc.
8. Assets available for support [denial of SS in childless M okay if suff assets to support oneself – IRMO Terry; mismanagement of assets and denial for SS is okay – IRMO West]
SS and Retirement Benefits
Retirement and Perm SS – cannot require retired S to invade retirement benefits, cannot force someone to retire, can force someone who is eligible for retirement to annuitize her IRA and use that to support herself.
Earning Capacity in relation to CS / SS
CS Earning Capacity Considerations: NEEDS OF MINOR C ARE PARAMOUNT
o Retaining and Seek Work Orders
o No requirement for “excessive hours”
SS Earning Capacity Consideration:
o Support spouse accountable for unwise financial decisions related to earned income or assets award to that spouse to make them self-supporting
• Reas rate of return on income producing assets = OK
o Should consider BIC when considering imputing wages re SS
• Imputation of earning capacity must be consistent with the BIC when imputing earning for the purpose of SS (IRMO FICKE)
Guideline CS
- code for GL calc
- timeshare considerations
- deviations
- higher earner cases
Ct must do GL CS calcs (FC 4052)
o Findings of net monthly disposable income and other findings are mandatory
o Ps/Attys should M+C as to what they agree to in the DM report (CRC 9.5(a))
Timeshare + CS – determine based on each C on 12-mo avg; paying of childcare is not “your custodial time” (throw up rule).
o Errors: not basing CS on actual TS, incorrectly adjusting tax inputs, not adjusting mandatory retirement, hardship deductions for other C, ATI for 401k, etc.
• CS paid to other C must be pursuant to a Ct Order
DEVIATIONS TO GL CS Steps: Ct must make a finding of GL CS on the record AND state reasons for deviation + why deviation is in BIC
• Reasons for Deviation – low income adjustments, deferred sale of residence, C has own independent access to income (disabled C w/ trust), special needs of C (increase CS)
HIGH EARNERS – Estevez and Cryer
o Estevez – ct can limit discovery in CS cases; specific findings needed w/ deviation
o Cryer – C removed by CPS, left CS same b/c M needed to maintain home
Guideline CS
- code for GL calc
- timeshare considerations
- deviations
- higher earner cases
Ct must do GL CS calcs (FC 4052)
o Findings of net monthly disposable income and other findings are mandatory
o Ps/Attys should M+C as to what they agree to in the DM report (CRC 9.5(a))
Timeshare + CS – determine based on each C on 12-mo avg; paying of childcare is not “your custodial time” (throw up rule).
o Errors: not basing CS on actual TS, incorrectly adjusting tax inputs, not adjusting mandatory retirement, hardship deductions for other C, ATI for 401k, etc.
• CS paid to other C must be pursuant to a Ct Order
DEVIATIONS TO GL CS Steps: Ct must make a finding of GL CS on the record AND state reasons for deviation + why deviation is in BIC
• Reasons for Deviation – low income adjustments, deferred sale of residence, C has own independent access to income (disabled C w/ trust), special needs of C (increase CS)
HIGH EARNERS – Estevez and Cryer
o Estevez – ct can limit discovery in CS cases; specific findings needed w/ deviation
o Cryer – C removed by CPS, left CS same b/c M needed to maintain home
Support Modification
- showing / BOP
- what would meet BOP?
Change of circumstances based upon preponderance of evi.
COC = material change, not related to circumstances or expectations considered by TC @ time of original order (very fact specific)
What constitutes a COC?
• Term of CS = COC but must bring w/in 6 mos of CS term
• Increased value and access to retirement funds ≠ COC (Dietz)
• Ability to pull money from account without fees = COC
• Determine whether COC has occurred through requesting tax returns annually (FC 3664) or through your judgment including provisions for annual exchange
Support Modification
- showing / BOP
- what would meet BOP?
Change of circumstances based upon preponderance of evi.
COC = material change, not related to circumstances or expectations considered by TC @ time of original order (very fact specific)
What constitutes a COC?
• Term of CS = COC but must bring w/in 6 mos of CS term
• Increased value and access to retirement funds ≠ COC (Dietz)
• Ability to pull money from account without fees = COC
• Determine whether COC has occurred through requesting tax returns annually (FC 3664) or through your judgment including provisions for annual exchange
SS JX Modifcation
- ct Jx?
- considerations re: modification generally?
Jx does not continue beyond terms of the agreement or order; order must terminate temp SS, implied retention of jx in LTM (ct able to term w/ showing of change of circumstances); are there any restrictions upon modification?
GAVRON – warning to payee to become self-supporting, codified @ FC 4330
• Must be warning and plan to step down support, IRMO Schmir
IRMO Bardzik – Preponderance of evi with BOP upon the P seeking mod.
Modification Generally / Cases
o Reduction of LTM SS should always go through 4320 factors
o No one should be compelled to work past 65
o Ps can stipulate to a minimum, non-mod amt of SS
o Cannot step down unless payee showed to making more money (or able to)
o Richmond – record must show payee will be more self-supporting @ ea stage
o Mod/Termination okay if Ct deems just (under 3651) (MO Khera & Sameer)
o MSOL importance goes down over time
o Cohab ∆ reduced need (show cohab and $ contrib to exps or expensive gifts)
o Upward Mod – show needs @ DOS never met + BOP is on supported spouse; are needs not met due to no fault of supported spouse? COC upward
SS JX Modifcation
- ct Jx?
- considerations re: modification generally?
Jx does not continue beyond terms of the agreement or order; order must terminate temp SS, implied retention of jx in LTM (ct able to term w/ showing of change of circumstances); are there any restrictions upon modification?
GAVRON – warning to payee to become self-supporting, codified @ FC 4330
• Must be warning and plan to step down support, IRMO Schmir
IRMO Bardzik – Preponderance of evi with BOP upon the P seeking mod.
Modification Generally / Cases
o Reduction of LTM SS should always go through 4320 factors
o No one should be compelled to work past 65
o Ps can stipulate to a minimum, non-mod amt of SS
o Cannot step down unless payee showed to making more money (or able to)
o Richmond – record must show payee will be more self-supporting @ ea stage
o Mod/Termination okay if Ct deems just (under 3651) (MO Khera & Sameer)
o MSOL importance goes down over time
o Cohab ∆ reduced need (show cohab and $ contrib to exps or expensive gifts)
o Upward Mod – show needs @ DOS never met + BOP is on supported spouse; are needs not met due to no fault of supported spouse? COC upward
Atty Fees: General Awards
FC 2030
“Parity and access to justice”
- requires ruling w/in 15 days
Atty Fees: “Need” Analysis
Most fee awards require the court to look at “needs” and “ability to pay”.
“Need” is not only a fin. issue, but it is about access to justice and behavior
o Look @ the 4320 factors when looking at need. Alan S., Jr. v. Superior Ct
o Can consider 3P’s reg pymt of living exps (EXC: post-sep “but for payments, P would be living on the street”)
Atty Fees: DVPA fees
FC 6344
– prevailing party, consider ability to pay EXC: perp ≠ get fees where convicted of violent sexual felony, attempted to kill spouse
Atty Fees: Ability to Pay Analysis
Court can order fees IF Ct makes independent determination of ability to pay
Ability – create an undue financial hardship considering support obligations?
o EXCs to requirement for ability to pay – CCP and discovery sanctions
o Ct can order even if both have $, but one has much more. IRMO O’Connor
o Look @ 3P payment of life exps, unreported income, business paying fees, indirect control of assets with use-benefits, sustained hx of using capital assets to fund lifestyle, etc.
Atty Fees: How Ct must determine “how much” to award
Ct MUST make independent examination of the reasonableness of the fees, not simply order a % of the fees requested
o Cueva Dec includes work performed, skill, complexity, nature of litigation, success, learning/age/exp needed to handle the matter, intricacy; Ceech Dec will contain a lot of this sort of stuff.
o Ct needs to consider if the fees expended were against prompt/equitable resolution of the matter, over-litigating, prolonging it, etc. Behrens
Atty Fee: Considerations
- privilege
- ruling
- when to award fees
- 3Ps and fees
Atty-Client Priv. – Be careful what said inDec, make sure to state not waiver of ACP
Ct must state reasoning for ruling on fees/costs
Make fee awards early. Abuse of discretion for Ct to make parties wait until trial for fees order (IRMO Hatch)
Ct can force someone to borrow to pay fees
May disentitled P from their defense against if they won’t give info needed (Hofer)
3P’s can be joined for fee purposes, but it’s 2-way street ∆ they can get fees v. you
Atty Fees and Case Mgmt of them
FC 2032 - Ct can manage fees, liquidate assets, access lines of credit, order borrowing, QDRO to get $, etc.; requires PDDs from both sides
Sanctions in Family Law
- code
- requirements
- purpose
- reasons
- who can be sanctioned?
- how much can be sanctioned?
FC 271
REQUIREMENTS: (1) not impose financial burden, (2) have adeq notice of intention
o Notice ≠ needs to be a motion; best practice = motion + warnings to OPCs
PURPOSE: Used as means of assuring cases move forward, deter and restitution; policy of fostering settlement. Ct should examine early, not wait until the end said IRMO Davenport, deviating from IRMO Feldman
o Other ways for deterring – discovery sanctions, BOFD fee awards, enf. fees
REASONS: litigating issue in bad faith, bringing a duplicative civil action while FL action is pending, mtn to reconsider despite res judicata, engaging in bad faith negotiations (IRMO Abrams), uncivil/unprof conduct, failure to honor prior agmts re experts, discovery, overly-aggressive letters/assertions, rambling agmts w/ little law/lots of HS, attaching confidential/privileged mediation docs to pleadings
OTHER
o P can be held responsible for conduct of their atty; 271 can be v. atty too
o “reasonableness” of 271 fees means Ct can order more than requested
Discovery Sanctions
Brought under CCP, no I&E required and can be against atty - $ or issue sanctions
TEST: Was there a substantial justification for not responding or limited response?
o Not subject to finding of need/ability to pay
Bad Faith Sanctions
CCP 128.7
REQUIRE: Notice/Opp to be Heard; no I&E required
o To give notice – send letter with motion you are prepared to file. Must do at least 21 days in advance (“safe habor” period”
Can be against client or atty
REASONS: friv conduct in pleadings.
Atty Fees: Other Grounds
- K based fees for prevailing P: CIV CODE 1717 – atty fees to prevailing party; inability to pay ≠ issue (could do offsetting against 2030 fees, however).
- UCCJEA – FC 3400
- Venue Motion – CCP 397 and 398(b)
- Collection of CS/SS – FC 3557
- Enf of Visitation Orders – FC 3028
- Reimb for Enf of Support Orders – FC 4303
- Unwarranted disclosure of custody report – FC 3111 (P, lawyer, 3P)
- False abuse/neglect – FC 3027.1
- BOFD – FC 271 and FC 1101 [not need based, can be more than request]
- Forcing OP to do PDDS – FC 2107
- Reimb rights for pymt of debts assigned to OP – FC 916(b) (need/ability)
Atty Fees: UCCJEA ground
FC 3400
Atty Fees: Collection of CS/SS
FC 3557
Atty Fees: Enf of Visitation Orders
FC 4303
Atty Fees: Reimb for Enf of Support Orders
FC 3028
Atty Fees: False abuse/neglect report
FC 3027.1
Atty Fees: BOFD fee ground
FC 271 and FC 1101 (not need based and can be more than amount requested)
Atty Fees: Reimb for pymts of debts assigned to OP
FC 916(b) - need/ability balance
