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.
