How does a practitioner negotiate and draft an order that provides for spousal support to continue beyond the remarriage of the supported spouse? What language, if any, is needed in the judgment to insure that the intentions of the parties are followed?
In re Marriage of Cesnalis (2003) 106 Cal.App.4th 1267; 131 Cal.Rptr.2d 436, the court addresses these concerns.
The Cesnalis’s were marred November 30, 1992. They separated in 1999. The stipulated judgment, prepared by husband’s attorney (after much negotiation), provided in pertinent part as follows:
“Husband shall pay spousal support in the amount of $4,000.00 per month for a period of three years…beginning November 1, 2000 and continuing until either parties’ death or October 20, 2003, whichever occurs first, at which point, spousal support will terminate absolutely. The duration of spousal support will not be modifiable under any circumstances and the termination dates stated herein are absolute, and no court shall have jurisdiction over the issue of spousal support, regardless of whether any motion is made on, before or after October 30, 2003. The parties stipulate that the marriage was one of short duration, and otherwise have bargained carefully for the termination of support contained herein.”
The stipulated judgment for dissolution of marriage was entered on October 25, 2000. The wife remarried on August 6, 2001. The husband, upon learning of wife’s remarriage, moved to terminate spousal support. The trial court, after allowing extrinsic evidence regarding the settlement negotiations, denied husband’s request. Husband appealed.
The Appellate Court confirmed the Trial Court’s decision. First, the Appellate Court cited the relevant Family Code section regarding waiver of the provision for a termination of spousal support obligation upon the remarriage of the supported ex-spouse The Court quoted Family Code Section 4337 which states:
“Except as otherwise agreed by the parties in writing, the obligation of a party under an order for the support of the other party terminates upon the death of either party, or the remarriage of either party.”
The court stated that although no particular or unique language was required to make spousal support continue after the remarriage of the supported spouse, silence on the subject would be insufficient to establish a waiver of the rule that continuing spousal support terminate.
Citing In re Marriage of Thorton (2002) 95 Cal.App.4th 251; 115 Cal.Rptr. 2d 380, the court stated, on page 439, that:
“…remarriage termination is not waived simply because the written agreement fails to include remarriage among the terminating events that are expressly mentioned … (and) the party seeking to overcome a remarriage termination bears the burden of proving, by clear and convincing evidence the requisite written agreement.”
In determining whether or not a waiver occurred in Cesnalis the court indicated that there were two lines of cases. One line followed the analysis in In re Marriage of Glasser, (1986) 181 Cal.App.3d 149; 226 Cal.Rptr. 229, and In re Marriage of Thorton (previously cited). Those cases found that the language used did not waive the remarriage provision for termination of spousal support.
On the other hand, the court cited a line of cases following In re Marriage of Sherman (1984) 162 Cal.App.3d 1132; 208 Cal.Rptr. 832 and Steele v. Langermuir (1976) 65 Cal.App.3d 459; 135 Cal.Rptr. 426, in which the language did constitute a waiver of the spousal support termination provision and therefor susceptible to the admission of extrinsic evidence to determine actual intent. Steele dealt with an agreement that provided for termination upon “death or remarriage” but failed to specify whose death terminated support. Absent more specificity it held that the death language only refered to the death of the supported spouse. The Cesnalis court stated, on Page 439, that the Steele/Sherman line of cases was:
” … more tailored in critical ways. In Steele the agreement provided that spousal support would continue until death, remarriage or the expiration of 20 years and was “‘to be deemed non-modifiable, regardless of any change of circumstances, except for the contingencies contained herein’ … In Sherman, the agreement stated that ‘the amount of support, the method of payment and the terms and conditions of termination of support, all as (previously specified) shall not be modified by the parties or by any court on any grounds.’”
The court found that the language use in the Cesnalis judgment fell more within the lines of the Sherman/Steele cases.
The relevant provision in the stipulated judgment in the Cesnalis judgment spoke of a specified termination date (October 20, 2003) and a specific duration for support that would not be modifiable during that duration. The court stated on Page 440:
“In applying the previously stated principle, how a written agreement may waive Section 4337, … the paragraph does not specifically mention remarriage. But it does say that the only way that the spousal support can end before the three year period elapsed is when one of the parties dies. … (the judgment) reiterates that the three year duration cannot be changed under any other circumstances; it is no stretch to say that a supported spouse’s remarriage would generally be considered the most prominent of such circumstances. Viewed in this light, … (the judgment) cannot be said to be altogether silent on remarriage as a terminating event.”
With regard to the admission of extrinsic evidence the court also found that the Trial Court was correct in admitting same. The court stated on Page 440:
“On the issue of extrinsic evidence, the preceding analysis of paragraph 4 language demonstrates that the paragraph is reasonably susceptible to interpretation as a declaration of intent that support continues beyond remarriage. Because of this reasonable susceptibility, the trial court properly admitted extrinsic evidence on the meaning of paragraph 4 regarding the remarriage.”
The Appellate Court went on to discuss the extrinsic evidence that was admitted at the Trial Court. It was undisputed that the judgment originally drafted by husband’s counsel included the termination of spousal support upon remarriage. Husband contended in a declaration that his then-counsel advised him that taking the provision out regarding the termination of marriage would have no legal effect. Husband also contended in his declaration that at the time of the negotiation, wife’s attorney had stated that although removing same may have no legal effect, that was what wife wanted.
The Appellate Court sustained the Trial Court’s decision in discounting these assertions. The Appellate Court stated on Page 441, that the Trial Court had been correct in finding that if wife and her counsel “…believed that removing the remarriage language from Paragraph 4 would have no legal effect, it would have been nonsensical to bargain for it.”
The Appellate court sustained the finding in the Trial Court that there in fact had been a written waiver of the remarriage termination provision for spousal support.
In dicta, the court indicated its disagreement with the Thorton court’s requirement of language specifically serving as a waiver of the remarriage termination provision for spousal support. Quoting the Thorton case in discussing Family Code Section 4337, the Thorton case states:
“If the parties wish to make a written agreement to waive the remarriage provisions of Section 4337, they must, at a minimum, expressly state that the spouse’s remarriage will not terminate spousal support.”
The Cesnalis court significantly disagrees with Thorton. As the Cesnalis court stated on Page 441:
“We believe this statement goes beyond the requirement of Family Code Section 4337. Taken liberally, this statement would mean that particular words are required to waive Section 4337, and that extrinsic evidence has no relevance in resolving whether a written agreement has waived the Section 4337 remarriage provision. Section 4337 does not go so far as to require a written agreement expressly stating that the support spouse’s remarriage will not terminate spousal support.”
Counsel needs to be vigilant in drafting and negotiating such clauses. Records of the negotiations should be preserved. Cesnalis would suggest that if during the course of negotiations clauses are deleted from such agreements regarding certain issues, particularly termination of spousal support, counsel should not necessarily rely on the un-stated assumption that the ‘current law’ reflects the parties intentions. If there appears to be any hint of language which is “reasonably susceptible to interpretation” of a contrary intent, extrinsic evidence may be allowed to assist the court in determining what the agreement of the parties actually was.
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Monday, January 25, 2010
Cohabitation, the recent case of In re Marriage of Bower
It is common for family law attorneys to hear from clients who are paying spousal support that their ex-spouse is now living with someone and as a result they should not be obligated to continue to pay spousal support. The state legislature, in Family Code Section 4323, addresses the relationship between cohabitation and the need for spousal support. In the recent case of In re Marriage of Bower, (DJDAR 2547/343/4/2002) the reviewing court analyses what constitutes living together in the context of utilizing the presumptions found in Family Code Section 4323.
In fact, Family Code Section 4323 is entitled the “Effect of cohabitation on support.” The section states,in part, as follows:
(a)(1) Except as otherwise agreed to by the parties in writing, there is a rebuttable presumption, effecting the burden of proof, of decreased need for spousal support if the supporting party is cohabiting with a person of the opposite sex. Upon a determination that circumstances have changed, the court may modify or terminate the spousal support….
It is often difficult to determine what evidence needs to be presented in order to trigger this “rebuttable presumption”.
In Bower, there was an October 1995 decree of divorce dissolving a 15-year marriage. Husband was ordered to pay Wife $1,700.00 per month as spousal support.
In February 1997, Husband went to court seeking a reduction of spousal support based upon the fact that Wife was then living with Mr. S and, as such, her need for support (i.e., her expenses) had decreased as per application of Family Code Section 4323. Husband was unsuccessful in his modification and the court did not reduce support. His ex-wife admitted that she had “moved in” with Mr. S but that he was, in essence, a “roommate”. Wife provided checks to the court payable to Mr. S for her portion of living expenses (rent, utilities, food, etc.). Wife stated that pursuant to this arrangement her only decrease in expenses was that her rent had declined a small “little bit”. Wife also indicated, from her income and expense declaration, that her 1997 gross monthly income of $2,690.00 had only increased approximately $100.00 compared to her gross monthly income in October 1995 (the time the original order was made), of $2,586.00.
Based upon the information presented, the trial court, at that time, denied Husband’s request. The court specifically found that Wife and Mr. S’s relationship was only as “roommates” and that in fact she was not “cohabiting” pursuant to the intent of Family Code Section 4323.
In October 2000, Husband again filed a modification requesting either a reduction or termination of spousal support. He again alleged that Wife was now cohabiting with Mr. S and, as such, her need for continued support had decreased pursuant to Family Code Section 4323. This time however, Husband submitted a joint bank statement between Wife and Mr. S indicating that they had maintained a joint savings account. In fact, the parties stipulated that Wife was now cohabiting with Mr. S. The court ruled that Wife was now cohabiting with Mr. S and reduced monthly spousal support to $500.00 per month with a termination of support in a year from the reduction.
Wife appealed this decision.
In the Court of Appeals, Wife contended that in 1997 she had been cohabiting with Mr. S and that, as such, there had not been a change of circumstance with regards to the characterization of her relationship in 2000. She argued that the court absent any change in circumstances had abused its discretion in modifying the existing order. The Court of Appeals rejected this argument. Based upon the 1997 court ruling, it was clear that the court had found that Wife and Mr. S were only living together in the same residence but were not cohabiting.
The trial court’s ruling in 1997 that the parties were “only” roommates sharing expenses, and as such were not cohabiting within the meaning of Family Code Section 4323 was consistent with the legislative intent behind the statute. The court, citing the case of In re Marriage of Thweatt (1979) 96 Cal.App.3d 530, stated:
“When the legislature chose to use ‘cohabiting’ it was selecting a word of particular legal significance that carries more meaning than two persons of the opposite sex living under the same roof”.
The court in Thweatt found no cohabitation where Wife shared expenses with two male boarders and there was “no evidence of a sexual relationship, a romantic involvement, or even a homemaker-companion relationship between either of the men and women.” Wife’s 1997 proceeding was similarly devoid of such evidence. The Appellate Court stated that the evidence presented at Mrs. Bower’s 2000 hearing was substantially different. There was a stipulation by all parties that Wife was now cohabiting with Mr. S and in fact the Appellate Court characterized her relationship with Mr. S as having “ripened into more than just an arrangement for sharing expenses”.
Additional assistance to trial counsel regarding the meaning of what constitutes cohabitation can be found in the case of Steven W. v. Matthew S. (1995) 33 Cal.App.4th 1108, 39 Cal.Rptr.2d 535, wherein the Court said: “Cohabitation has acquired a ‘peculiar and appropriate meaning’ through its use in defining common law marriages. [Citation.] The settled meaning of cohabitation is ‘”living together as husband and wife.”‘ [Citation.] … [T]he California Supreme Court reversed a line of cases which held mere access or opportunity for access sufficient to satisfy the cohabitation requirement. [Citation.] The court specifically incorporated the definition of cohabitation previously used in determining common law marriage:
‘”And by cohabitation is not meant simply the gratification of the sexual passion, ‘but to live or dwell together, to have the same habitation, so that where one lives and dwells there does the other live and dwell also.’”‘ [Citation.]
Cohabitation implies more than a stolen weekend, or a sexual encounter; it is living together in a marital household, sharing day to day life.” (Id. at pp. 1114-1115.)
In addition, there was evidence presented to the court about Wife’s current decreased needs. The trial court found that in the order to show cause filed October 2000, that Wife’s monthly gross income was $3,598.00. In 1997 her gross monthly income was $2,690.00 At the time that the support order was originally made in October 1995 her gross monthly income was $2,586.00. (As such, her gross monthly income had increased $1,000.00 per month in three years). The court found that she currently had $500.00 in cash and $3,000.00 in savings and over $13,000.00 in other liquid assets. The court found that the joint account with Mr. S “which they equally contribute[d] to save up for vacations and trips taken together” was a material change of circumstances. The Appellate Court found that there had not been an abuse of discretion on the trial court’s part by reducing support. The Appellate Court noted that the trial court had determined that Husband had the financial ability to continue to provide support and that Wife was still living below the standard of living that was established during the marriage. The Appellate Court found that the trial court had not abused it discretion by ordering only one additional year of support, to allow Wife the time and income to obtain her own residence without having to invade savings and other assets. The Court noted that the record would have justified an outright termination of spousal support. Essentially, the Appellate Court found that the evidence presented by Husband was sufficient to shift the burden of proof to Wife to show that her expenses had not decreased thereby effecting her need. The trial court’s determination that Wife had not met this burden, was sustained.
The Bower decision tells us that in order to have the court apply the burden shifting inherent in the application of Family Code Section 4323, specific evidence, as to the sharing of expenses and saving money together (i.e., joint bank accounts) is highly valued.
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In fact, Family Code Section 4323 is entitled the “Effect of cohabitation on support.” The section states,in part, as follows:
(a)(1) Except as otherwise agreed to by the parties in writing, there is a rebuttable presumption, effecting the burden of proof, of decreased need for spousal support if the supporting party is cohabiting with a person of the opposite sex. Upon a determination that circumstances have changed, the court may modify or terminate the spousal support….
It is often difficult to determine what evidence needs to be presented in order to trigger this “rebuttable presumption”.
In Bower, there was an October 1995 decree of divorce dissolving a 15-year marriage. Husband was ordered to pay Wife $1,700.00 per month as spousal support.
In February 1997, Husband went to court seeking a reduction of spousal support based upon the fact that Wife was then living with Mr. S and, as such, her need for support (i.e., her expenses) had decreased as per application of Family Code Section 4323. Husband was unsuccessful in his modification and the court did not reduce support. His ex-wife admitted that she had “moved in” with Mr. S but that he was, in essence, a “roommate”. Wife provided checks to the court payable to Mr. S for her portion of living expenses (rent, utilities, food, etc.). Wife stated that pursuant to this arrangement her only decrease in expenses was that her rent had declined a small “little bit”. Wife also indicated, from her income and expense declaration, that her 1997 gross monthly income of $2,690.00 had only increased approximately $100.00 compared to her gross monthly income in October 1995 (the time the original order was made), of $2,586.00.
Based upon the information presented, the trial court, at that time, denied Husband’s request. The court specifically found that Wife and Mr. S’s relationship was only as “roommates” and that in fact she was not “cohabiting” pursuant to the intent of Family Code Section 4323.
In October 2000, Husband again filed a modification requesting either a reduction or termination of spousal support. He again alleged that Wife was now cohabiting with Mr. S and, as such, her need for continued support had decreased pursuant to Family Code Section 4323. This time however, Husband submitted a joint bank statement between Wife and Mr. S indicating that they had maintained a joint savings account. In fact, the parties stipulated that Wife was now cohabiting with Mr. S. The court ruled that Wife was now cohabiting with Mr. S and reduced monthly spousal support to $500.00 per month with a termination of support in a year from the reduction.
Wife appealed this decision.
In the Court of Appeals, Wife contended that in 1997 she had been cohabiting with Mr. S and that, as such, there had not been a change of circumstance with regards to the characterization of her relationship in 2000. She argued that the court absent any change in circumstances had abused its discretion in modifying the existing order. The Court of Appeals rejected this argument. Based upon the 1997 court ruling, it was clear that the court had found that Wife and Mr. S were only living together in the same residence but were not cohabiting.
The trial court’s ruling in 1997 that the parties were “only” roommates sharing expenses, and as such were not cohabiting within the meaning of Family Code Section 4323 was consistent with the legislative intent behind the statute. The court, citing the case of In re Marriage of Thweatt (1979) 96 Cal.App.3d 530, stated:
“When the legislature chose to use ‘cohabiting’ it was selecting a word of particular legal significance that carries more meaning than two persons of the opposite sex living under the same roof”.
The court in Thweatt found no cohabitation where Wife shared expenses with two male boarders and there was “no evidence of a sexual relationship, a romantic involvement, or even a homemaker-companion relationship between either of the men and women.” Wife’s 1997 proceeding was similarly devoid of such evidence. The Appellate Court stated that the evidence presented at Mrs. Bower’s 2000 hearing was substantially different. There was a stipulation by all parties that Wife was now cohabiting with Mr. S and in fact the Appellate Court characterized her relationship with Mr. S as having “ripened into more than just an arrangement for sharing expenses”.
Additional assistance to trial counsel regarding the meaning of what constitutes cohabitation can be found in the case of Steven W. v. Matthew S. (1995) 33 Cal.App.4th 1108, 39 Cal.Rptr.2d 535, wherein the Court said: “Cohabitation has acquired a ‘peculiar and appropriate meaning’ through its use in defining common law marriages. [Citation.] The settled meaning of cohabitation is ‘”living together as husband and wife.”‘ [Citation.] … [T]he California Supreme Court reversed a line of cases which held mere access or opportunity for access sufficient to satisfy the cohabitation requirement. [Citation.] The court specifically incorporated the definition of cohabitation previously used in determining common law marriage:
‘”And by cohabitation is not meant simply the gratification of the sexual passion, ‘but to live or dwell together, to have the same habitation, so that where one lives and dwells there does the other live and dwell also.’”‘ [Citation.]
Cohabitation implies more than a stolen weekend, or a sexual encounter; it is living together in a marital household, sharing day to day life.” (Id. at pp. 1114-1115.)
In addition, there was evidence presented to the court about Wife’s current decreased needs. The trial court found that in the order to show cause filed October 2000, that Wife’s monthly gross income was $3,598.00. In 1997 her gross monthly income was $2,690.00 At the time that the support order was originally made in October 1995 her gross monthly income was $2,586.00. (As such, her gross monthly income had increased $1,000.00 per month in three years). The court found that she currently had $500.00 in cash and $3,000.00 in savings and over $13,000.00 in other liquid assets. The court found that the joint account with Mr. S “which they equally contribute[d] to save up for vacations and trips taken together” was a material change of circumstances. The Appellate Court found that there had not been an abuse of discretion on the trial court’s part by reducing support. The Appellate Court noted that the trial court had determined that Husband had the financial ability to continue to provide support and that Wife was still living below the standard of living that was established during the marriage. The Appellate Court found that the trial court had not abused it discretion by ordering only one additional year of support, to allow Wife the time and income to obtain her own residence without having to invade savings and other assets. The Court noted that the record would have justified an outright termination of spousal support. Essentially, the Appellate Court found that the evidence presented by Husband was sufficient to shift the burden of proof to Wife to show that her expenses had not decreased thereby effecting her need. The trial court’s determination that Wife had not met this burden, was sustained.
The Bower decision tells us that in order to have the court apply the burden shifting inherent in the application of Family Code Section 4323, specific evidence, as to the sharing of expenses and saving money together (i.e., joint bank accounts) is highly valued.
To read more and visit our web site click here: http://la-family-law
Spousal Support After Mandatory Retirement: All That Glitters is Not Gold
The last half of the ’90s have witnessed a dramatic rise in downsizing, enhanced early retirement programs, and voluntary early retirements for the sake of enjoying the “golden years.” Over the last 10 years, appellate courts have made it clear that a spousal support payor who chooses to take advantage of early retirement is still chargeable with imputed income, based on his or her earning capacity.
Another trend has emerged over the last few years, toward limiting and reducing the spousal support burden on payors. The Legislature provided a powerful example of that trend in its 1996 amendment to Family Code § 4320(c), which defines a reasonable time period for purposes of determining the duration of spousal support to be one-half the length of the marriage. At the same time, the Legislature amended Family Code § 4330, to requires trial courts to admonish the parties of their obligation to “make reasonable good faith efforts to become self-supporting.” This amendment makes no distinction between supported and supporting spouses.
These two trends provide the dual focus of the recent appellate decision of In re Marriage of Reynolds (5/19/98) 98 Daily Journal D.A.R. 5279. Prior to Reynolds, no court had addressed the issue of how to whether income may be imputed where the payor spouse retired at full or mandatory retirement age.
The Reynolds court, which ruled on this, received considerable attention for its statement that, “in the instance of a bona fide retirement, a supporting spouse should not be forced to continue working.” Thus, while a spousal support payor cannot retire prematurely without risk of being charged with income attributable to earning capacity, the same is not true of a payor who retires at or after normal retirement age.
In Reynolds, the supporting spouse was 67 at time of retirement; his retirement was deemed “bona fide.” In contrast, in the earlier case of In re Marriage of Sinks (1988) 204 Cal.App.3d 586, 251 Cal.Rptr. 379, the supporting spouse was 62 at the time he retired with a full pension; however, the appellate court affirmed the trial court’s holding that his voluntary retirement was an attempt to shirk his support obligations.
The Sinks panel noted that if the paying spouse’s motives had not been suspect, the fact would have presented an issue of first impression, whether a spouse who is eligible for retirement is nevertheless obligated to continue working to provide spousal support. It was that issue, still of first impression as to payors of normal retirement age, with which the Reynolds court grappled.
In In re Marriage of Stephenson (1995) 39 Cal.App.4th 71, 46 Cal.Rptr.2d 8, the retiree was 59, and chose to accept his employer’s offer of early retirement in the form of a lump-sum “golden handshake.” The appellate court held that where a supporting spouse elects to retire early, he or she is chargeable with imputed income based on earning capacity. even where, as in that case, the spouse’s employer virtually forced him into retirement and his motives were not suspect. The panel did not discuss the case of the spouse who retires at normal retirement age, rather than taking early retirement.
However, despite the fact that Reynolds broke new ground by addressing for the first time whether a supporting spouse could retire at age 65 or greater without running the risk of being charged with imputed income, that decision is most notable for its penultimate paragraph, dealing with treatment of private retirement accounts such as IRAs and Keoghs. Improperly citing In re Marriage of Olson (1993) 14 Cal.App.4th 1, 17 Cal.Rptr.2d 480, the Reynolds panel wrote:
Only investment income, not investment principal, should be available to pay spoussal support, especially in this case whether the subject retirement assets represent Husband’s residual share of the community property awarded to him as part of the dissolution. [98 Daily Journal D.A.R. at 5281]
The Olson decision held, among other things, that after a payor spouse reaches age 59-1/2, a trial court may impute income to the payor based on the ability to make withdrawals from an indiividual retirement plan account. In one sentence, the Reynolds court created a conflict of authority, not only with Olson, but with two cases (including one California Supreme Court case) holding that retirement accounts which were formerly community but which have been divided are available for payment of spousal support.
In Olson, Justice Donald B. King addressed an issue of first impression, the extent of trial courts’ discretion to consider accruals in a retirement plan in fixing spousal support. The court limited its discussion to individual retirements plans such as IRAs, Keoghs, and deferred compensation plans, and then considered the federal and state law pertaining to such withdrawals from such retirement plans.
The Olson court then defined divided support payors and the discretion of the trial court into three different classes, based on the age of the payor:
1. Where the payor is under the age of 59-1/2, it would be an abuse of discretion for a trial court to order the amount of spousal support based on funds in a retirement plan, since if those funds were withdrawn they would be subject not only to tax as ordinary income but to a 10 percent penalty.
2. Where the payor is between 59-1/2 and 70-1/2, the payor may make withdrawals from the plan without being subject to the 10 percent penalty. Therefore, if the payor is choosing not to make such withdrawals, the court has discretion to consider whether or not to impute reasonable withdrawals as additional income for purposes of fixing spousal support. However, in exercising its discretion the trial court should consider the public policy favoring making provision for retirement by allowing the funds in the plan to accrue tax-free; that policy should be weighed against all of the other circumstances in the case as set forth in Family Code § 4320.
3. Where the payor is over the age of 70-1/2, the plan participant is penalized if he or she fails to make minimum withdrawals based on life expectancy. Once the participant reaches age 70-1/2, the court has discretion to impute as income an amount greater than the mandatory minimum withdrawal, but must be cautious in doing so in view of the public policy considerations discussed in the previous paragraph.
Reynolds also noted that the trial court could not impute income based on retirement funds “especially in this case where the subject retirement assets represent Husband’s residual share of the community property awarded to him as part of the dissolution.” This statement flatly contradicts the holding of the Supreme Court in In re Marriage of Epstein (1979) 24 Cal.3d 76, 154 Cal.Rptr. 413, as well as In re Marriage of White (1987) 192 Cal.App.3d 1022, 237 Cal.Rptr. 764.
The White court reversed the trial court for refusing to consider the husband’s retirement income from a formerly community property pension in determining his ability to pay spousal support. The White court quoted and relied on the Supreme Court’s ruling in Epstein, which held:
Moreover, even if a future award of spousal support must come from husband’s half of the community property there is no requirement excluding such property as a source of that support. [24 Cal.3d at 91 n.14]
Since Reynolds involved a reversal of the trial court’s ruling, and not just an affirmance of the trial court’s exercise of discretion, it will obviously have a significant impact on spousal support orders where the payor is over age 65 and seeking to reduce spousal support following retirement. As a result, supported spouses who have been unable to become self-supporting and who relied on having a predictable income stream from spousal support in their “golden years” may find that by reverse alchemy those years have turned to lead.
Another trend has emerged over the last few years, toward limiting and reducing the spousal support burden on payors. The Legislature provided a powerful example of that trend in its 1996 amendment to Family Code § 4320(c), which defines a reasonable time period for purposes of determining the duration of spousal support to be one-half the length of the marriage. At the same time, the Legislature amended Family Code § 4330, to requires trial courts to admonish the parties of their obligation to “make reasonable good faith efforts to become self-supporting.” This amendment makes no distinction between supported and supporting spouses.
These two trends provide the dual focus of the recent appellate decision of In re Marriage of Reynolds (5/19/98) 98 Daily Journal D.A.R. 5279. Prior to Reynolds, no court had addressed the issue of how to whether income may be imputed where the payor spouse retired at full or mandatory retirement age.
The Reynolds court, which ruled on this, received considerable attention for its statement that, “in the instance of a bona fide retirement, a supporting spouse should not be forced to continue working.” Thus, while a spousal support payor cannot retire prematurely without risk of being charged with income attributable to earning capacity, the same is not true of a payor who retires at or after normal retirement age.
In Reynolds, the supporting spouse was 67 at time of retirement; his retirement was deemed “bona fide.” In contrast, in the earlier case of In re Marriage of Sinks (1988) 204 Cal.App.3d 586, 251 Cal.Rptr. 379, the supporting spouse was 62 at the time he retired with a full pension; however, the appellate court affirmed the trial court’s holding that his voluntary retirement was an attempt to shirk his support obligations.
The Sinks panel noted that if the paying spouse’s motives had not been suspect, the fact would have presented an issue of first impression, whether a spouse who is eligible for retirement is nevertheless obligated to continue working to provide spousal support. It was that issue, still of first impression as to payors of normal retirement age, with which the Reynolds court grappled.
In In re Marriage of Stephenson (1995) 39 Cal.App.4th 71, 46 Cal.Rptr.2d 8, the retiree was 59, and chose to accept his employer’s offer of early retirement in the form of a lump-sum “golden handshake.” The appellate court held that where a supporting spouse elects to retire early, he or she is chargeable with imputed income based on earning capacity. even where, as in that case, the spouse’s employer virtually forced him into retirement and his motives were not suspect. The panel did not discuss the case of the spouse who retires at normal retirement age, rather than taking early retirement.
However, despite the fact that Reynolds broke new ground by addressing for the first time whether a supporting spouse could retire at age 65 or greater without running the risk of being charged with imputed income, that decision is most notable for its penultimate paragraph, dealing with treatment of private retirement accounts such as IRAs and Keoghs. Improperly citing In re Marriage of Olson (1993) 14 Cal.App.4th 1, 17 Cal.Rptr.2d 480, the Reynolds panel wrote:
Only investment income, not investment principal, should be available to pay spoussal support, especially in this case whether the subject retirement assets represent Husband’s residual share of the community property awarded to him as part of the dissolution. [98 Daily Journal D.A.R. at 5281]
The Olson decision held, among other things, that after a payor spouse reaches age 59-1/2, a trial court may impute income to the payor based on the ability to make withdrawals from an indiividual retirement plan account. In one sentence, the Reynolds court created a conflict of authority, not only with Olson, but with two cases (including one California Supreme Court case) holding that retirement accounts which were formerly community but which have been divided are available for payment of spousal support.
In Olson, Justice Donald B. King addressed an issue of first impression, the extent of trial courts’ discretion to consider accruals in a retirement plan in fixing spousal support. The court limited its discussion to individual retirements plans such as IRAs, Keoghs, and deferred compensation plans, and then considered the federal and state law pertaining to such withdrawals from such retirement plans.
The Olson court then defined divided support payors and the discretion of the trial court into three different classes, based on the age of the payor:
1. Where the payor is under the age of 59-1/2, it would be an abuse of discretion for a trial court to order the amount of spousal support based on funds in a retirement plan, since if those funds were withdrawn they would be subject not only to tax as ordinary income but to a 10 percent penalty.
2. Where the payor is between 59-1/2 and 70-1/2, the payor may make withdrawals from the plan without being subject to the 10 percent penalty. Therefore, if the payor is choosing not to make such withdrawals, the court has discretion to consider whether or not to impute reasonable withdrawals as additional income for purposes of fixing spousal support. However, in exercising its discretion the trial court should consider the public policy favoring making provision for retirement by allowing the funds in the plan to accrue tax-free; that policy should be weighed against all of the other circumstances in the case as set forth in Family Code § 4320.
3. Where the payor is over the age of 70-1/2, the plan participant is penalized if he or she fails to make minimum withdrawals based on life expectancy. Once the participant reaches age 70-1/2, the court has discretion to impute as income an amount greater than the mandatory minimum withdrawal, but must be cautious in doing so in view of the public policy considerations discussed in the previous paragraph.
Reynolds also noted that the trial court could not impute income based on retirement funds “especially in this case where the subject retirement assets represent Husband’s residual share of the community property awarded to him as part of the dissolution.” This statement flatly contradicts the holding of the Supreme Court in In re Marriage of Epstein (1979) 24 Cal.3d 76, 154 Cal.Rptr. 413, as well as In re Marriage of White (1987) 192 Cal.App.3d 1022, 237 Cal.Rptr. 764.
The White court reversed the trial court for refusing to consider the husband’s retirement income from a formerly community property pension in determining his ability to pay spousal support. The White court quoted and relied on the Supreme Court’s ruling in Epstein, which held:
Moreover, even if a future award of spousal support must come from husband’s half of the community property there is no requirement excluding such property as a source of that support. [24 Cal.3d at 91 n.14]
Since Reynolds involved a reversal of the trial court’s ruling, and not just an affirmance of the trial court’s exercise of discretion, it will obviously have a significant impact on spousal support orders where the payor is over age 65 and seeking to reduce spousal support following retirement. As a result, supported spouses who have been unable to become self-supporting and who relied on having a predictable income stream from spousal support in their “golden years” may find that by reverse alchemy those years have turned to lead.
Spousal Support in Long-term Marriage
It has been said that in life nothing is certain other than death and taxes. In the family law trade, a third certainty can be added–paying spousal support after a long marriage.
In the recent case of In re Marriage of Schmir, 11/16/05, Div 7, B175397 the court delineated the proper way to terminate support after a long-term marriage.
Judy and Maurice Schmir married in 1964; separated in 1987 and received a Judgment of Dissolution of Marriage in 1989. Maurice was ordered to pay Judy $5,800.00 per month in spousal support. In January 2003, Maurice filed a modification with the court to terminate his spousal support obligation. The hearing on the order to show cause filing occurred on October 2003 (although the court had reduced Maurice’s spousal support payments on a “interim basis” to $2,000.00 per month effective June 2003). At the hearing on October 2003, the court terminated Maurice’s spousal support obligation effective November 1, 2003.
Judy appealed from the trial court’s decision and the court not only reversed the termination of support, but delineated a detailed and specific new support order.
Although Judy had appealed the trial court’s order on several grounds, the appellate court denied all of them, with the exception of the trial court’s failure to afford Judy reasonable advance notice she needed to obtain gainful employment because her spousal support was ending in less than a month.
As the court stated:
“We find no error in the termination order itself. However, under the circumstances presented in this case we conclude the trial court abused its discretion in terminating Judy’s support without affording her a reasonable advance notice and opportunity to secure employment”.
The appellate court gave an excellent primer as to the changing social function of spousal support in the family law context.
The public policy of California regarding spousal support in a divorce following a long-term marriage has progressed from one which “entitled some women to lifelong alimony as a condition of the martial contract of support to one that entitles either spouse to post-dissolution support for only so long as is necessary to become self-supporting”, citing (In re Marriage of Pendleton & Fireman (2000) 24,Cal.4th 39, 53). As the court stated:
“Along with this change in attitude toward spousal support came the judicial recognition that before spousal support can be terminated or reduced, the supporting spouse… must be given fair notice of the expectation of some sufficiency and a reasonable opportunity to achieve such goals”.
The appellate court then discussed two cases, In re Marriage of Richmond (1980) 105 Cal.App.3d 352 and In re Marriage of Gavron (1988) 203 Cal.App.3d 705 that have provided the method for implementation of this view of spousal support.
In Richmond, the trial court ordered the husband to pay spousal support until a date certain at which time it would terminate forever, unless the supported spouse filed an order to show cause prior to said date to extend spousal support. In upholding that type of order, the appellate court in that case found that the supported spouse should bear the burden of coming forth with evidence since that party had better access to the relevant evidence. Thus this procedure, of shifting the burden of showing need prior to a termination date to the supported spouse, became known as a “Richmond Order”.
The Gavron case involved a modification of a support order after a 25-year marriage. Although the trial court granted the requested modification, the appellate court reversed explaining that the supported spouse needed to be affirmatively advised of the need to take steps to become self-supporting or possibly face termination. Thus, this admonishment became known as a “Gavron warning” notifying recipients of active spousal support, that they are expected to become self-supporting. This Gavron warning was codified by Family Code Section 4330, which was mandatory in all support obligations until 1999, when it became a discretionary warning. In Schmir, Maurice had argued to the appellate court that the current situation was distinguishable from Gavron because Judy was, in a sense, under-employed and not needing to obtain employment. The appellate court made short shrift of that distinction. The court stated:
“… We see no logical reason to distinguish between spouses who need to ‘become employable’ and spouses who are already employable. Equity and fairness requires spouses in both classes receive a reasonable notice and opportunity to find employment. How much advance warning is reasonable obviously depends on the circumstances of each case… It is not possible to set a minimum or maximum warning time….
In the present case, however, three weeks notice was clearly too short and even 10 months is problematic”.
In reversing the trial court, the appellate court modified the decision and laid out its own spousal support plan. First, the appellate court reversed the June 2003 order reducing the spousal support from $5,800.00 per month to $2,000.00 per month. The appellate court then modified by striking certain provisions of the court’s order and replaced it with the following:
“Judy’s support continue at the rate of $5,800.00 per month from June 2003 to such time as Judy obtains employment at the rate of at least $2,500.00 per month or ceases to make good faith effort to obtain such employment or attains the age of 65 years, whichever occurs first. If Judy obtains employment at the rate of at least $2,500.00 per month or ceases to make good faith effort to obtain such employment prior to obtaining the age of 65 her support shall be reduced to zero. At the request of Maurice, the trial court shall conduct a hearing to determine whether Judy is making a good faith effort to earn at least $2,500.00 per month. Such hearing, however, shall occur no more frequently than every three months.”
As such, Gavron, Richmond, and now Schmir, present a very discernible road map to terminate spousal support after a long-term marriage. Every award of spousal support should include the descretionary Gavron-type warning. Further, because the trial court may be reluctant to terminate the spousal support after long-term marriage a “Richmond” type order, shifting of the burden to the supported spouse who is in control of the evidence for additional need, may be more agreeable to a trial court.
Finally, even if a party is successful in terminating support, support cannot be abruptly terminated and as such a prospective termination with some future date may be the way to go.
To read more please visit our web site at: http://la-family-law.com
In the recent case of In re Marriage of Schmir, 11/16/05, Div 7, B175397 the court delineated the proper way to terminate support after a long-term marriage.
Judy and Maurice Schmir married in 1964; separated in 1987 and received a Judgment of Dissolution of Marriage in 1989. Maurice was ordered to pay Judy $5,800.00 per month in spousal support. In January 2003, Maurice filed a modification with the court to terminate his spousal support obligation. The hearing on the order to show cause filing occurred on October 2003 (although the court had reduced Maurice’s spousal support payments on a “interim basis” to $2,000.00 per month effective June 2003). At the hearing on October 2003, the court terminated Maurice’s spousal support obligation effective November 1, 2003.
Judy appealed from the trial court’s decision and the court not only reversed the termination of support, but delineated a detailed and specific new support order.
Although Judy had appealed the trial court’s order on several grounds, the appellate court denied all of them, with the exception of the trial court’s failure to afford Judy reasonable advance notice she needed to obtain gainful employment because her spousal support was ending in less than a month.
As the court stated:
“We find no error in the termination order itself. However, under the circumstances presented in this case we conclude the trial court abused its discretion in terminating Judy’s support without affording her a reasonable advance notice and opportunity to secure employment”.
The appellate court gave an excellent primer as to the changing social function of spousal support in the family law context.
The public policy of California regarding spousal support in a divorce following a long-term marriage has progressed from one which “entitled some women to lifelong alimony as a condition of the martial contract of support to one that entitles either spouse to post-dissolution support for only so long as is necessary to become self-supporting”, citing (In re Marriage of Pendleton & Fireman (2000) 24,Cal.4th 39, 53). As the court stated:
“Along with this change in attitude toward spousal support came the judicial recognition that before spousal support can be terminated or reduced, the supporting spouse… must be given fair notice of the expectation of some sufficiency and a reasonable opportunity to achieve such goals”.
The appellate court then discussed two cases, In re Marriage of Richmond (1980) 105 Cal.App.3d 352 and In re Marriage of Gavron (1988) 203 Cal.App.3d 705 that have provided the method for implementation of this view of spousal support.
In Richmond, the trial court ordered the husband to pay spousal support until a date certain at which time it would terminate forever, unless the supported spouse filed an order to show cause prior to said date to extend spousal support. In upholding that type of order, the appellate court in that case found that the supported spouse should bear the burden of coming forth with evidence since that party had better access to the relevant evidence. Thus this procedure, of shifting the burden of showing need prior to a termination date to the supported spouse, became known as a “Richmond Order”.
The Gavron case involved a modification of a support order after a 25-year marriage. Although the trial court granted the requested modification, the appellate court reversed explaining that the supported spouse needed to be affirmatively advised of the need to take steps to become self-supporting or possibly face termination. Thus, this admonishment became known as a “Gavron warning” notifying recipients of active spousal support, that they are expected to become self-supporting. This Gavron warning was codified by Family Code Section 4330, which was mandatory in all support obligations until 1999, when it became a discretionary warning. In Schmir, Maurice had argued to the appellate court that the current situation was distinguishable from Gavron because Judy was, in a sense, under-employed and not needing to obtain employment. The appellate court made short shrift of that distinction. The court stated:
“… We see no logical reason to distinguish between spouses who need to ‘become employable’ and spouses who are already employable. Equity and fairness requires spouses in both classes receive a reasonable notice and opportunity to find employment. How much advance warning is reasonable obviously depends on the circumstances of each case… It is not possible to set a minimum or maximum warning time….
In the present case, however, three weeks notice was clearly too short and even 10 months is problematic”.
In reversing the trial court, the appellate court modified the decision and laid out its own spousal support plan. First, the appellate court reversed the June 2003 order reducing the spousal support from $5,800.00 per month to $2,000.00 per month. The appellate court then modified by striking certain provisions of the court’s order and replaced it with the following:
“Judy’s support continue at the rate of $5,800.00 per month from June 2003 to such time as Judy obtains employment at the rate of at least $2,500.00 per month or ceases to make good faith effort to obtain such employment or attains the age of 65 years, whichever occurs first. If Judy obtains employment at the rate of at least $2,500.00 per month or ceases to make good faith effort to obtain such employment prior to obtaining the age of 65 her support shall be reduced to zero. At the request of Maurice, the trial court shall conduct a hearing to determine whether Judy is making a good faith effort to earn at least $2,500.00 per month. Such hearing, however, shall occur no more frequently than every three months.”
As such, Gavron, Richmond, and now Schmir, present a very discernible road map to terminate spousal support after a long-term marriage. Every award of spousal support should include the descretionary Gavron-type warning. Further, because the trial court may be reluctant to terminate the spousal support after long-term marriage a “Richmond” type order, shifting of the burden to the supported spouse who is in control of the evidence for additional need, may be more agreeable to a trial court.
Finally, even if a party is successful in terminating support, support cannot be abruptly terminated and as such a prospective termination with some future date may be the way to go.
To read more please visit our web site at: http://la-family-law.com
Final Order in Family Law Case Is Not Always Closure
Los Angeles Daily Journal, Vol.117, Issue 219, November 10, 2004
When a hotly contested child custody case spills over into a juvenile dependency case, most family law attorneys will not continue handling the child custody portion of the case in this new arena. Once a dependency matter is commenced, the child custody portion of the family law case is stayed. However, remaining family law issues, such as property division and support are not stayed. Typically, a family law attorney will wait until the dependency case has terminated to resume working on child custody issues. The recent case of In Re Marriage of David M. and Martha M. (2006)DJDAR7065 (”David M.”, suggests that the family Law practitioner may want to have input in the dependency matter before dependency jurisdiction terminates.
The jurisdiction of the dependency court over a child terminates after the dependency court makes an order pursuant to Welfare and Institutions Code Section 362.4. These orders are called exit orders. The exit order not only releases a child from dependency court jurisdiction, but also may provide a specific plan with regard to further custody and visitation for the parties and the child.
However, the dependency court exit order may conflict with the jurisdictional powers of the family law court. This was noticeable in the case of In Re Chantal S. (1996) 13 Cal 4th 196; 51 Cal Reporter 2nd 866. In that case, part of the exit order specified ongoing and open ended counseling as a condition for visitation. Once the exit order transferred the matter to the family law court, the case was now subject to statutory restrictions of the Family Law Act. The counseling provisions in family law, are more restricted in time and type than counseling orders that are made in dependency court. For example, Family Code Section 3190 limits counseling involved in a custody and visitation dispute for a time “not more than one year”. Once the exit order in Chantal S., was addressed in the family law court, the court had to apply counseling as specified under the family law act, and as such the exit order was modified.
A more recent example of the troublesome nature of exit orders for family law attorneys, can be found in the case of David M. In that case the appellate court determined that as a matter of law, an exit order pursuant to Welfare and Institutions Code Section 362.4 is a final custody order, consistent with Montenegro v. Diaz (2001) 26 Ca4t 249. (”Montenegro”) In Montenegro, the court held that in a Stipulated Judgment of custody unless there is a clear statement by the parties that the child custody order is a final order, said child custody order will be treated as a temporary order requiring a reduced burden to modify same. The court in Montenegro held that when modifying a temporary custody order, the burden is only to show what is in the present best interest of the children. However, with a final custody order, the burden to modify custody requires a showing of a substantial change of factual circumstances that effect the best interest of the children.
Subsequent to the Montenegro, courts have expanded the definition of what constitutes a temporary custody order. In the case of In Re Marriage of Richardson (Cal App 4th 941)(2002), the court stated that absent a “clear, affirmative indication that the parties intended the stipulation … to be a final judicial determination of custody, the father was not required to show that a significant change of circumstances justified modifying the custody order.” (page 952)
As a practical matter, the holding in Montenegro, was extremely significant. The court in Montenegro had indicated that child custody matters often involve fluid factual situations. The developmental needs of the children often change over time. As such, from time to time a divorced family may need judicial intervention to address certain situations. The Montenegro case and its progeny have enabled the court to have a mechanism for parties to address the current needs of children, without creating a high evidenciary burden the next time the court needs to be involved.
However, in David M., the appellate court treated the final order from dependency court as a final determination of custody. The facts of David M. are somewhat troubling. The court indicated that the exit order came very shortly after the parties had arrived at a mediated agreement as to visitation. However, the case is silent as to whether or not the parties had made any indication in the mediated agreement that they intended to agree to a final custody order. Had this mediated agreement arisen out of a family law court, it would clearly have been a temporary custody order under Montenegro. Absent a clear and unambiguous statement of the parties intentions, the order would have been characterized as a temporary order of custody. However, this mediation arose within a dependency case and David M. arguably stands for the proposition that a stipulated exit order from dependency court, as a matter of law, is a final custody order.
Family lawyers when confronted with the possibility of a child custody case terminating in dependency court, should be involved as soon as possible in drafting the exit order. In light of David M. and the fact that one needs a substantial change of circumstances to modify an exit order, the exit order should specify the conditions and assumptions in existence upon which the order was based. Further, such assumptions should be labeled as material assumptions, so that if any assumptions fails, then one can argue that the failure constitutes a substantial change of circumstances and that the order can be modified.
David M. is contrary to the trend of family law appellate courts decisions that seek to find a clear indication that the parties in a stipulated custody case intended the order to be a final judicial determination of custody. Exit orders from dependency court can be a serious impediment in any subsequent modification of child custody orders in family law courts, making it more difficult for the parties to properly address the ever changing and future needs of children.
To read more and visit our web site please click here. http://la-family-law.com
When a hotly contested child custody case spills over into a juvenile dependency case, most family law attorneys will not continue handling the child custody portion of the case in this new arena. Once a dependency matter is commenced, the child custody portion of the family law case is stayed. However, remaining family law issues, such as property division and support are not stayed. Typically, a family law attorney will wait until the dependency case has terminated to resume working on child custody issues. The recent case of In Re Marriage of David M. and Martha M. (2006)DJDAR7065 (”David M.”, suggests that the family Law practitioner may want to have input in the dependency matter before dependency jurisdiction terminates.
The jurisdiction of the dependency court over a child terminates after the dependency court makes an order pursuant to Welfare and Institutions Code Section 362.4. These orders are called exit orders. The exit order not only releases a child from dependency court jurisdiction, but also may provide a specific plan with regard to further custody and visitation for the parties and the child.
However, the dependency court exit order may conflict with the jurisdictional powers of the family law court. This was noticeable in the case of In Re Chantal S. (1996) 13 Cal 4th 196; 51 Cal Reporter 2nd 866. In that case, part of the exit order specified ongoing and open ended counseling as a condition for visitation. Once the exit order transferred the matter to the family law court, the case was now subject to statutory restrictions of the Family Law Act. The counseling provisions in family law, are more restricted in time and type than counseling orders that are made in dependency court. For example, Family Code Section 3190 limits counseling involved in a custody and visitation dispute for a time “not more than one year”. Once the exit order in Chantal S., was addressed in the family law court, the court had to apply counseling as specified under the family law act, and as such the exit order was modified.
A more recent example of the troublesome nature of exit orders for family law attorneys, can be found in the case of David M. In that case the appellate court determined that as a matter of law, an exit order pursuant to Welfare and Institutions Code Section 362.4 is a final custody order, consistent with Montenegro v. Diaz (2001) 26 Ca4t 249. (”Montenegro”) In Montenegro, the court held that in a Stipulated Judgment of custody unless there is a clear statement by the parties that the child custody order is a final order, said child custody order will be treated as a temporary order requiring a reduced burden to modify same. The court in Montenegro held that when modifying a temporary custody order, the burden is only to show what is in the present best interest of the children. However, with a final custody order, the burden to modify custody requires a showing of a substantial change of factual circumstances that effect the best interest of the children.
Subsequent to the Montenegro, courts have expanded the definition of what constitutes a temporary custody order. In the case of In Re Marriage of Richardson (Cal App 4th 941)(2002), the court stated that absent a “clear, affirmative indication that the parties intended the stipulation … to be a final judicial determination of custody, the father was not required to show that a significant change of circumstances justified modifying the custody order.” (page 952)
As a practical matter, the holding in Montenegro, was extremely significant. The court in Montenegro had indicated that child custody matters often involve fluid factual situations. The developmental needs of the children often change over time. As such, from time to time a divorced family may need judicial intervention to address certain situations. The Montenegro case and its progeny have enabled the court to have a mechanism for parties to address the current needs of children, without creating a high evidenciary burden the next time the court needs to be involved.
However, in David M., the appellate court treated the final order from dependency court as a final determination of custody. The facts of David M. are somewhat troubling. The court indicated that the exit order came very shortly after the parties had arrived at a mediated agreement as to visitation. However, the case is silent as to whether or not the parties had made any indication in the mediated agreement that they intended to agree to a final custody order. Had this mediated agreement arisen out of a family law court, it would clearly have been a temporary custody order under Montenegro. Absent a clear and unambiguous statement of the parties intentions, the order would have been characterized as a temporary order of custody. However, this mediation arose within a dependency case and David M. arguably stands for the proposition that a stipulated exit order from dependency court, as a matter of law, is a final custody order.
Family lawyers when confronted with the possibility of a child custody case terminating in dependency court, should be involved as soon as possible in drafting the exit order. In light of David M. and the fact that one needs a substantial change of circumstances to modify an exit order, the exit order should specify the conditions and assumptions in existence upon which the order was based. Further, such assumptions should be labeled as material assumptions, so that if any assumptions fails, then one can argue that the failure constitutes a substantial change of circumstances and that the order can be modified.
David M. is contrary to the trend of family law appellate courts decisions that seek to find a clear indication that the parties in a stipulated custody case intended the order to be a final judicial determination of custody. Exit orders from dependency court can be a serious impediment in any subsequent modification of child custody orders in family law courts, making it more difficult for the parties to properly address the ever changing and future needs of children.
To read more and visit our web site please click here. http://la-family-law.com
Family Code Section 3040
Often in child custody litigation, the court has to make a tough call as to the physical time share. Family law litigators often advise clients not to demonstrate a “bad attitude” in conjunction with the sharing of custody, or exercise of visitation of children with the other party. A demonstration of “bad attitude” by a party can not only be one of the compelling reasons why the court doesn’t award that party custody, but as demonstrated in the recent Appellate case of In re Marriage of Dupre (CO 46938) same can also lead to monetary awards against a party and their attorney.
In the case of In re Marriage of Dupre, the mother had shared custody of the parties’ 9-year old daughter J. However, upon learning that J. had had some inappropriate sexual contact with the 8-year old daughter of mother’s boyfriend, father sought an ex parte custody order suspending mother’s custody/visitation rights with the minor child. The ex parte order was granted, pending a Family Court Services (FCS) investigation. The investigation report by FCS was released three days later and the report indicated that J. had not been sexually molested but had engaged in mutual sexual experimentation with a like-age child, a normal part of childhood sexual development.
Mother then went to court and requested that the FCS report recommendation be adopted and her custodial rights restored. The Trial Court adopted the recommendation of the FCS report, and the court also issued a mandatory Order to Show Cause for Family Code Section 3027.1 sanctions.
Family Code Section 3027.1 provides that if false allegations of child abuse or neglect are made during a child custody proceeding, and that the person making the accusation knew it to be false at the time the accusation was made, the court may impose monetary sanctions against the party, a witness or the party’s attorney.
By the time the sanctions motion was heard, the original judge issuing the Order to Show Cause had retired. At the sanctions hearing, the attorney for the father argued that Family Code Section 3027.1 required that in the underlying custody hearing there had first to be a finding that the allegations of abuse were false and knowingly made. Since such a determination had never been made, father contended that mother was now precluded from seeking Family Code Section 3027.1 sanctions. The mother objected to that interpretation of the code section. Mother also requested that the court take judicial notice of the entire FCS report.
The trial court denied the appropriateness of the issuance of the Order to Show Cause for Family Code Section 3027.1 sanctions because “the issue of falsity must be adjudicated in the underlying custody proceeding”. Further, the trial court denied mother’s request that the court take judicial notice of the FCS report in that only the recommendation had been adopted for the court’s order, and the rest of the report consisted of hearsay information.
Mother appealed, and the Appellate Court granted mother’s right to proceed under Family Code Section 3827.1, but denied mother’s request for the court to take judicial notice of the entire FCS report.
First, after discussing some procedural problems in mother’s request for appellate review, the Appellate Court stated that a simple reading of Family Code Section 3027.1, does not require that the issue of falsity of the accusation first be determined in the underlying custody hearing. As the court states:
“Nothing in the wording of Section 3027.1 supports an interpretation requiring the finding underlying the sanctions to be made during the custody proceeding. To read such a requirement into the statute runs afoul of our duty to refrain from rewriting a statute ‘to make express and intention that did not find itself expressed in the language of that provision’. (citing cases)… The statute requires a false statement be made during the child custody proceeding… The statute does not require a falsity to be established during the child custody proceeding.”
The Appellate Court also noted that the statute specifically refers to “any person” (witnesses or attorneys). The Appellate Court, favorably quoting extensively from mother’s appellate brief, stated:
“It makes no sense that the legislature would have intended the parties to a temporary custody proceeding to stand aside while non-party litigants and/or a combination of party and non-party litigants to a Section 3027.1 sanction motion tried the issue of falsity and knowing falsity in that custody proceeding, before the temporary custody proceeding could be concluded. …we find mother’s argument persuasive.”
However, the Appellate Court did not feel that the trial court had abused its discretion by not taking judicial notice of the entire FCS report. The Appellate Court succinctly stated so as follows:
“… We find no error. Judicial notice is the recognition and acceptance by the court of the existence of a matter of law or fact that is relevant…. However, while the courts are free to take judicial notice of the existence of each document in the court file, they may not take judicial notice of the truth of hearsay statements in …. court files. The courts may not take judicial notice of allegations and affidavits, declarations and probation reports in court records because such matters are reasonably subject to dispute and therefore require formal proof (citing cases).”
The Appellate Court remanded the Order to Show Cause for sanctions per Family Code Section 3027.1 back to the trial court. A factual determination as to whether father knew the allegations to be false will now have to be made.
The court has other tools at its disposal ifone party demonstrates a “bad attitude” regarding custody awards. Pursuant to Family Code Section 3027.5(b), the court can order supervised visitation to a party making false allegations of sexual abuse.
This bad attitude standard can also be a factor in the court making the overall determination of custody. As Family Code Section 3040 states, the first preference for granting custody of a minor is to the parties jointly. However, the next preference is to either party. The only statutory guideline given to the court in determining which party should be awarded custody is stated as follows:
“In making an order granting custody to either parent, the court shall consider,… which parent is more likely to allow the child frequent and continuing contact with the non-custodial parent…”.
Family Code Section 3040 is often referred to as the “friendly parent provision”. A party who demonstrates a “bad attitude” towards the other party, which manifests itself in the diminution of contact with the child/children of the relationship, may very well fail this statutory te
In the case of In re Marriage of Dupre, the mother had shared custody of the parties’ 9-year old daughter J. However, upon learning that J. had had some inappropriate sexual contact with the 8-year old daughter of mother’s boyfriend, father sought an ex parte custody order suspending mother’s custody/visitation rights with the minor child. The ex parte order was granted, pending a Family Court Services (FCS) investigation. The investigation report by FCS was released three days later and the report indicated that J. had not been sexually molested but had engaged in mutual sexual experimentation with a like-age child, a normal part of childhood sexual development.
Mother then went to court and requested that the FCS report recommendation be adopted and her custodial rights restored. The Trial Court adopted the recommendation of the FCS report, and the court also issued a mandatory Order to Show Cause for Family Code Section 3027.1 sanctions.
Family Code Section 3027.1 provides that if false allegations of child abuse or neglect are made during a child custody proceeding, and that the person making the accusation knew it to be false at the time the accusation was made, the court may impose monetary sanctions against the party, a witness or the party’s attorney.
By the time the sanctions motion was heard, the original judge issuing the Order to Show Cause had retired. At the sanctions hearing, the attorney for the father argued that Family Code Section 3027.1 required that in the underlying custody hearing there had first to be a finding that the allegations of abuse were false and knowingly made. Since such a determination had never been made, father contended that mother was now precluded from seeking Family Code Section 3027.1 sanctions. The mother objected to that interpretation of the code section. Mother also requested that the court take judicial notice of the entire FCS report.
The trial court denied the appropriateness of the issuance of the Order to Show Cause for Family Code Section 3027.1 sanctions because “the issue of falsity must be adjudicated in the underlying custody proceeding”. Further, the trial court denied mother’s request that the court take judicial notice of the FCS report in that only the recommendation had been adopted for the court’s order, and the rest of the report consisted of hearsay information.
Mother appealed, and the Appellate Court granted mother’s right to proceed under Family Code Section 3827.1, but denied mother’s request for the court to take judicial notice of the entire FCS report.
First, after discussing some procedural problems in mother’s request for appellate review, the Appellate Court stated that a simple reading of Family Code Section 3027.1, does not require that the issue of falsity of the accusation first be determined in the underlying custody hearing. As the court states:
“Nothing in the wording of Section 3027.1 supports an interpretation requiring the finding underlying the sanctions to be made during the custody proceeding. To read such a requirement into the statute runs afoul of our duty to refrain from rewriting a statute ‘to make express and intention that did not find itself expressed in the language of that provision’. (citing cases)… The statute requires a false statement be made during the child custody proceeding… The statute does not require a falsity to be established during the child custody proceeding.”
The Appellate Court also noted that the statute specifically refers to “any person” (witnesses or attorneys). The Appellate Court, favorably quoting extensively from mother’s appellate brief, stated:
“It makes no sense that the legislature would have intended the parties to a temporary custody proceeding to stand aside while non-party litigants and/or a combination of party and non-party litigants to a Section 3027.1 sanction motion tried the issue of falsity and knowing falsity in that custody proceeding, before the temporary custody proceeding could be concluded. …we find mother’s argument persuasive.”
However, the Appellate Court did not feel that the trial court had abused its discretion by not taking judicial notice of the entire FCS report. The Appellate Court succinctly stated so as follows:
“… We find no error. Judicial notice is the recognition and acceptance by the court of the existence of a matter of law or fact that is relevant…. However, while the courts are free to take judicial notice of the existence of each document in the court file, they may not take judicial notice of the truth of hearsay statements in …. court files. The courts may not take judicial notice of allegations and affidavits, declarations and probation reports in court records because such matters are reasonably subject to dispute and therefore require formal proof (citing cases).”
The Appellate Court remanded the Order to Show Cause for sanctions per Family Code Section 3027.1 back to the trial court. A factual determination as to whether father knew the allegations to be false will now have to be made.
The court has other tools at its disposal ifone party demonstrates a “bad attitude” regarding custody awards. Pursuant to Family Code Section 3027.5(b), the court can order supervised visitation to a party making false allegations of sexual abuse.
This bad attitude standard can also be a factor in the court making the overall determination of custody. As Family Code Section 3040 states, the first preference for granting custody of a minor is to the parties jointly. However, the next preference is to either party. The only statutory guideline given to the court in determining which party should be awarded custody is stated as follows:
“In making an order granting custody to either parent, the court shall consider,… which parent is more likely to allow the child frequent and continuing contact with the non-custodial parent…”.
Family Code Section 3040 is often referred to as the “friendly parent provision”. A party who demonstrates a “bad attitude” towards the other party, which manifests itself in the diminution of contact with the child/children of the relationship, may very well fail this statutory te
What is Meant by “Joint Legal Custody”
To the inexperienced practitioner, legal custody is an afterthought. These attorneys will assist their clients in fine-tuning the physical custody provisions of their judgment or order, but pay little attention to the details of the legal custody order — sole or joint; decision-making to require agreement or not?
The recent United States Supreme Court case of Elk Grove USD v. Newdow (6/14/2004) 04 DJDAR 7022, illustrates the significance of the legal custody portion of a custody decree. In Elk Grove, the parties had a California custody decree which provided for joint legal custody. However, the decree also provided that if a dispute arose, the mother retained the final decision-making ability.
As has been well-publicized, the father wanted to file a lawsuit challenging the requirement of his daughter’s school district that the Pledge of Allegiance be recited, on the ground that the phrase “under God” was in essence the State mandating a particular form of religious practice. The mother refused to participate in or agree to the lawsuit.
The Elk Grove plurality deemed this difference between the parties a dispute over a legal custodial issue. Accordingly, in its plurality decision, the United States Supreme Court held that because the mother, pursuant to court order, held the ultimate decision-making authority in the event of a dispute, the father was legally incapable of deciding to file a lawsuit regarding this issue and lacked standing. That plurality opinion stated:
We conclude that, having been deprived under California law of the right to sue as next friend, Newdow lacks prudential standing to bring this suit in federal court. [04 DJDAR at 7025]
Thus, the Supreme Court was able to avoid the church/state issues presented by this case and left a discussion of same to the concurring opinions.
What are the implications of Elk Grove for the family law practitioner? Clearly, an award of “joint legal custody,” absent more, is now inadequate to preserve a parent’s right to participate in decisions which that parent believes are important to the best interests of the child.
This concept was previously suggested in the case of In re Marriage of Neal (1979) 92 Cal.App.3d 834, which observed that an award of joint legal custody was “ephemeral and essentially meaningless,” when one party has been awarded sole physical custody, but both parents have been awarded joint legal custody.
Elk Grove has given much added weight to the suggestion of the Neal Court. It is now incumbent upon any parent who is seeking meaningful joint legal custody to insist that the parameters of joint legal custody be articulated by the trial court..
Joint legal custody itself is defined in Family Code § 3003, which provides:
Joint legal custody means that both parents shall share the right and responsibility to make the decisions relating to the health, education, and welfare of the child.
To give meaning and “teeth” to an award of joint legal custody, counsel should look to and invoke Family Code § 3083, which states:
In making an order of joint legal custody, the court shall specify the circumstances under which the consent of both parents is required to be obtained in order to exercise legal control of the child and the consequences of the failure to obtain mutual consent. In all other circumstances, either parent acting alone may exercise legal control of the child. An order of joint legal custody shall not be construed to permit an action that is inconsistent with the physical custody order unless the action is expressly authorized by the court.
In essence and in substance, Family Code § 3083 provides that if no one specifies the particulars of what joint legal custody will mean, there is a “default”. The default status is that either parent may make the decisions with reference to the health, education or welfare of the minor child. Hence, either parent could consent to cosmetic surgery for the minor child, acquire a driver’s license for the minor child, change a child’s major in school, change the child’s name, or litigate whether the child should recite the pledge of allegiance in school referencing the word “God” Given the randomness of people’s action, the result of such unilateral activity can be rather chaotic.
But merely citing the court to Family Code § 3083 is not sufficient. Counsel and client should be in a position to articulate the circumstances and areas in which joint consent should be required. These circumstances include, but are by no means limited to:
* Major medical decisions (excluding emergencies).
* Change of school.
* Change of academic pursuits within school (i.e., change of major, etc.).
* Beginning a course of psychotherapy.
* Cosmetic surgery.
* Enrollment in extracurricular sports activities (contact football, hockey, judo, etc.).
* Signing of report cards.
* Acquisition of passports.
* Signing contracts on behalf of the child (for theatrical services, etc.).
* Signing for the driver’s license of the child.
* Being nominated as a guardian ad litem to litigate causes of action on behalf of the minor child (as in Elk Grove).
The above list is by all means not complete. Practitioners should discuss the parameters of legal custody well prior to the date of the custody hearing, and not discussed literally on the “courthouse steps”.
In addition, counsel should apprise the client that, along with the many benefits of joint legal custody, come certain statutory liabilities which may accrue to a parent who shares joint legal custody, although that parent does not share physical custody.
By way of only one example, Civil Code § 1714.1 provides that a parent in “custody and control” of a minor is liable up to $25,000.00 in damages resulting from acts of the minor which cause death, physical injury, property damage. Similarly, Education Code § 48904 provides for a parent’s liability for a child’s willful misconduct or vandalism of school property up to an amount of $10,000.00. And, Penal Code § 490.5(b) provides that a parent having “control or custody” of a minor can be jointly and severally liable with the minor for shoplifting or theft of books from a library.
While these imputed liability sections speak to liability based upon presumably physical custody an argument could be made extending same to a joint legal parent. If both parents have authorized a minor to acquire a driver’s license, both parents may share some responsibility with reference to that minor should same cause an accident.
As Elk Grove suggests, “legal custody” may have a broad, wide ranging impact.
To read more and visit our web site click here. http://la-family-law.com
The recent United States Supreme Court case of Elk Grove USD v. Newdow (6/14/2004) 04 DJDAR 7022, illustrates the significance of the legal custody portion of a custody decree. In Elk Grove, the parties had a California custody decree which provided for joint legal custody. However, the decree also provided that if a dispute arose, the mother retained the final decision-making ability.
As has been well-publicized, the father wanted to file a lawsuit challenging the requirement of his daughter’s school district that the Pledge of Allegiance be recited, on the ground that the phrase “under God” was in essence the State mandating a particular form of religious practice. The mother refused to participate in or agree to the lawsuit.
The Elk Grove plurality deemed this difference between the parties a dispute over a legal custodial issue. Accordingly, in its plurality decision, the United States Supreme Court held that because the mother, pursuant to court order, held the ultimate decision-making authority in the event of a dispute, the father was legally incapable of deciding to file a lawsuit regarding this issue and lacked standing. That plurality opinion stated:
We conclude that, having been deprived under California law of the right to sue as next friend, Newdow lacks prudential standing to bring this suit in federal court. [04 DJDAR at 7025]
Thus, the Supreme Court was able to avoid the church/state issues presented by this case and left a discussion of same to the concurring opinions.
What are the implications of Elk Grove for the family law practitioner? Clearly, an award of “joint legal custody,” absent more, is now inadequate to preserve a parent’s right to participate in decisions which that parent believes are important to the best interests of the child.
This concept was previously suggested in the case of In re Marriage of Neal (1979) 92 Cal.App.3d 834, which observed that an award of joint legal custody was “ephemeral and essentially meaningless,” when one party has been awarded sole physical custody, but both parents have been awarded joint legal custody.
Elk Grove has given much added weight to the suggestion of the Neal Court. It is now incumbent upon any parent who is seeking meaningful joint legal custody to insist that the parameters of joint legal custody be articulated by the trial court..
Joint legal custody itself is defined in Family Code § 3003, which provides:
Joint legal custody means that both parents shall share the right and responsibility to make the decisions relating to the health, education, and welfare of the child.
To give meaning and “teeth” to an award of joint legal custody, counsel should look to and invoke Family Code § 3083, which states:
In making an order of joint legal custody, the court shall specify the circumstances under which the consent of both parents is required to be obtained in order to exercise legal control of the child and the consequences of the failure to obtain mutual consent. In all other circumstances, either parent acting alone may exercise legal control of the child. An order of joint legal custody shall not be construed to permit an action that is inconsistent with the physical custody order unless the action is expressly authorized by the court.
In essence and in substance, Family Code § 3083 provides that if no one specifies the particulars of what joint legal custody will mean, there is a “default”. The default status is that either parent may make the decisions with reference to the health, education or welfare of the minor child. Hence, either parent could consent to cosmetic surgery for the minor child, acquire a driver’s license for the minor child, change a child’s major in school, change the child’s name, or litigate whether the child should recite the pledge of allegiance in school referencing the word “God” Given the randomness of people’s action, the result of such unilateral activity can be rather chaotic.
But merely citing the court to Family Code § 3083 is not sufficient. Counsel and client should be in a position to articulate the circumstances and areas in which joint consent should be required. These circumstances include, but are by no means limited to:
* Major medical decisions (excluding emergencies).
* Change of school.
* Change of academic pursuits within school (i.e., change of major, etc.).
* Beginning a course of psychotherapy.
* Cosmetic surgery.
* Enrollment in extracurricular sports activities (contact football, hockey, judo, etc.).
* Signing of report cards.
* Acquisition of passports.
* Signing contracts on behalf of the child (for theatrical services, etc.).
* Signing for the driver’s license of the child.
* Being nominated as a guardian ad litem to litigate causes of action on behalf of the minor child (as in Elk Grove).
The above list is by all means not complete. Practitioners should discuss the parameters of legal custody well prior to the date of the custody hearing, and not discussed literally on the “courthouse steps”.
In addition, counsel should apprise the client that, along with the many benefits of joint legal custody, come certain statutory liabilities which may accrue to a parent who shares joint legal custody, although that parent does not share physical custody.
By way of only one example, Civil Code § 1714.1 provides that a parent in “custody and control” of a minor is liable up to $25,000.00 in damages resulting from acts of the minor which cause death, physical injury, property damage. Similarly, Education Code § 48904 provides for a parent’s liability for a child’s willful misconduct or vandalism of school property up to an amount of $10,000.00. And, Penal Code § 490.5(b) provides that a parent having “control or custody” of a minor can be jointly and severally liable with the minor for shoplifting or theft of books from a library.
While these imputed liability sections speak to liability based upon presumably physical custody an argument could be made extending same to a joint legal parent. If both parents have authorized a minor to acquire a driver’s license, both parents may share some responsibility with reference to that minor should same cause an accident.
As Elk Grove suggests, “legal custody” may have a broad, wide ranging impact.
To read more and visit our web site click here. http://la-family-law.com
Change of Circumstances
The recent case of Montenegro v. Diaz (7/10/00) 97 Cal.Rptr.2d 782, raises a little higher the obstacle of presenting a factual “change of circumstances” which must be hurdled by a custody litigant seeking to modify a permanent decree of custody and visitation. This case, a reversal of a trial court order changing custody from mother to father, arose out of the all-too-frequent pattern of a parent with a “bad attitude” who is and always has been intent on interfering with the other parent’s custodial time with the child. The Montenegro court held, in effect, that if the “bad attitude” existed prior to the time a permanent custody order was entered, either after trial or by stipulation, the degree of continuing interference as displayed in the Montenegro case with the custodial relationship does not amount to a change of circumstances and thus the custody decree cannot be modified to ameliorate the interference.
For the family law practitioner representing a non-custodial parent, the questions presented are, first, how to protect the parent by way of findings or other language contained in a stipulated judgment so as to lay a foundation for a future change of circumstances and thus the potential change of custody and, second, how to develop the evidence in a later modification proceeding so that a court can determine that a change of circumstances has occurred.
Deborah Diaz and Alex Montenegro were the unmarried parents of one child, Gregory. When Gregory was almost 1-1/2, the parties had a disagreement about whether Alex could keep Gregory overnight, which Alex did. In response, Deborah told Alex that he could not see Gregory again. About a week later, Alex filed a complaint to establish paternity. There followed a series of orders to show cause, resulting in eight orders, the first seven of which were by stipulation and the last and eighth of which was the contested order underlying this appellate decision.
The second stipulated order, entered September 30, 1996, when Gregory was less than two years old, was the most significant procedurally. That stipulation, in which Deborah was deemed to have “primary responsibility” for Gregory’s care, custody and control and Alex was awarded visitation, was entitled “Stipulation and Order on Order to Show Cause,” with the key words “for Judgment” added by hand.
During the ensuing years, the time-sharing arrangement was modified by stipulation several times. By the time of the seventh stipulated order, on June 24, 1997, Deborah was awarded “primary physical custody” and Alex had periods of “secondary physical custody” every Tuesday and Thursday, from 12:30 p.m. (after pre-school) until the following day at 6:00 p.m., and the first weekend of the month, from Thursday at 12:30 p.m. to Sunday at 6:00 p.m.
Between September 30, 1996, and February 11, 1998, when Alex filed his last order to show cause, Deborah denied Alex some visitations, claiming that Gregory or she was ill, and selected a pre-school for Gregory that was much closer to her residence than to Alex’s, contrary to a stipulated order calling for a pre-school “between” the parents’ homes. Additionally, Dr. Bradbury, to whom the parties had been referred for a “co-parenting class,” conducted eleven joint sessions, which he viewed as mediation. Deborah missed two other sessions. Dr. Bradbury found that Deborah was “consistently quite hostile” toward Alex, whereas Alex was willing to have an amicable relationship with Deborah. Dr. Bradbury finally terminated the sessions because they were going nowhere.
The parties were unable to resolve Alex’s February 11, 1998 OSC by stipulation, so the matter went to an evidentiary hearing over several days in August 1999. By that time, Alex had married, he and his new wife had already had a son, and were expecting a second child. Gregory was due to start kindergarten in September 1999, and Deborah had already begun the process of enrolling him in a public school near her home while Alex had reserved a space for the boy in a school hear his home. Dr. Bradbury testified at the hearing as to his opinion regarding the parents’ respective attitudes toward one another.
Deborah contended that the court could not modify the existing custody order without a showing of change of circumstance. The trial court rejected her argument, stating on the record, “This is an initial trial on custody,” and ruled that therefore the “standard to apply in determining custody is best interests of the child.” The court entered a judgment of paternity, changing custody of Gregory to Alex.
The court of appeal reversed, holding that the stipulated order of September 30, 1996 was “an initial judicial determination of custody — i.e., the judgment in this matter — and that the June 24, 1997 stipulated order was therefore a post-judgment order. Therefore, the trial court could modify that judicial determination “only if changed circumstances make such an order essential or expedient for the welfare of the child.”
The Montenegro court relied on a series of California Supreme Court decisions which successively reinforce the “changed-circumstance rule”: In re Marriage of Carney (1979) 24 Cal.3d 725; Burchard v. Garay (1986) 42 Cal.3d 531; and In re Marriage of Burgess (1996) 13 Cal.4th 25. Quoting from Burchard v. Garay, the Montenegro court observed, “The changed-circumstance rule is not a different test, devised to supplant the statutory test, but an adjunct to the best-interest test. It provides, in essence, that once it has been established that a particular custodial arrangement is in the best interests of the child, the court need not reexamine that question. Instead, it should preserve the established mode of custody unless some significant change in circumstances indicates that a different arrangement would be in the child’s best interest.” [42 Cal.3d at 535]
Alex argued that the changed-circumstance rule did not apply because the June 24, 1997 order was entered pursuant to stipulation. The court disagreed, noting that in In re Marriage of Biallas (1998) 65 Cal.App.4th 755, that same court had rejected a similar argument.
Alex also argued that the changed-circumstances rule did not apply because the parties were sharing joint physical custody, citing the “footnote 12″ exception of Burgess, supra. Again, the Montenegro panel rejected this argument, noting first that this was not a move-away case and questioning whether the exception would even apply where neither parent seeks to relocate. Interestingly, the opinion fails to mention In re Marriage of Birnbaum (1989) 211 Cal.App.3d 1508, an opinion authorized by Justice Donald B. King which held that no change of circumstances need be shown to revise a coparenting residential arrangement. Even if the “footnote 12″ exception could apply in non-move-away situations, the Montenegro court went on to say, these parents were not co-parenting under the standard established in Biallas (one overnight per week and every other weekend is “liberal visitation,” not joint physical custody).
Montenegro also appears to stand for the proposition (albeit unstated in that case) that a change of circumstances is not created merely by virtue of the child getting older or passing certain developmental milestones. Notably, Gregory was about to enter kindergarten at the time of the custody hearing, and in fact, the necessity of selecting one school for him was one of the issues raised at the hearing. By that time, Gregory also had one half-sibbling and soon would have a second. Nevertheless, the panel did not refer to either event as a change of circumstance.
Thus, Montenegro continues the trend of reinforcing and tightening the changed-circumstances requirement, as well as reiterating that it applies to all final custody decrees, whether stipulated or contested.
How can a parent in Alex’s situation — one who is apparently more willing to share with the other parent frequent and continuing contact with the children — demonstrate a change of circumstances? It is helpful to analogize to spousal support cases such as In re Marriage of Aninger (1990) 220 Cal.App.3d 230, holding that a change of circumstances can be found where there has been a failure of the assumptions underlying the judgment.
In the context of child custody and visitation, therefore, knowledgeable counsel can “plan ahead” for an anticipated modification by inserting findings or benchmarks into a judgment. For example, a judgment can be based on a requirement that the parties participate in conjoint counseling “in good faith.” Or the judgment can specify that a party’s failure to permit any single visit or a small percentage of visits will comprise a change of circumstances. Or the judgment can provide that it will be modified when the oldest child begins kindergarten.
In the absence of such clear-cut assumptions, however, a party can and should present evidence of a change of circumstances at a modification hearing. Expert testimony can be effective toward that end.
In Montenegro, Dr. Bradbury testified about Deborah’s inability to share or communicate with Alex, but the record is silent on the deterioration, if any, in Deborah’s attitude, perhaps because Alex’s counsel did not believe Alex needed to show a change of circumstances. If asked, Dr. Bradbury might have been able to supply the missing evidence.
Additionally, the record is silent on how Deborah’s attitude impacted Gregory, and how her conduct might have been more damaging to a five-year-old than to a younger child. While we can take it for granted that a child will continue to grow older and therefore attain certain milestones of age, the same cannot necessarily be said about other developmental milestones. Perhaps Alex could have demonstrated that Gregory was now experiencing developmental or psychological delays as a result of Deborah’s unwillingness to cooperate with Alex. For example, was Gregory beginning to exhibit signs of social difficulties, learning disorders, or other problems.
Such evidence might have sustained a finding of a change of circumstances and thus avoided the reversal in Montenegro. Regrettably, the record was not made at the trial level. As family law practitioners, we can use Montenegro as an instructional aid, to the benefit of our clients.
To read more and visit our web site click here. http://la-family-law.com
For the family law practitioner representing a non-custodial parent, the questions presented are, first, how to protect the parent by way of findings or other language contained in a stipulated judgment so as to lay a foundation for a future change of circumstances and thus the potential change of custody and, second, how to develop the evidence in a later modification proceeding so that a court can determine that a change of circumstances has occurred.
Deborah Diaz and Alex Montenegro were the unmarried parents of one child, Gregory. When Gregory was almost 1-1/2, the parties had a disagreement about whether Alex could keep Gregory overnight, which Alex did. In response, Deborah told Alex that he could not see Gregory again. About a week later, Alex filed a complaint to establish paternity. There followed a series of orders to show cause, resulting in eight orders, the first seven of which were by stipulation and the last and eighth of which was the contested order underlying this appellate decision.
The second stipulated order, entered September 30, 1996, when Gregory was less than two years old, was the most significant procedurally. That stipulation, in which Deborah was deemed to have “primary responsibility” for Gregory’s care, custody and control and Alex was awarded visitation, was entitled “Stipulation and Order on Order to Show Cause,” with the key words “for Judgment” added by hand.
During the ensuing years, the time-sharing arrangement was modified by stipulation several times. By the time of the seventh stipulated order, on June 24, 1997, Deborah was awarded “primary physical custody” and Alex had periods of “secondary physical custody” every Tuesday and Thursday, from 12:30 p.m. (after pre-school) until the following day at 6:00 p.m., and the first weekend of the month, from Thursday at 12:30 p.m. to Sunday at 6:00 p.m.
Between September 30, 1996, and February 11, 1998, when Alex filed his last order to show cause, Deborah denied Alex some visitations, claiming that Gregory or she was ill, and selected a pre-school for Gregory that was much closer to her residence than to Alex’s, contrary to a stipulated order calling for a pre-school “between” the parents’ homes. Additionally, Dr. Bradbury, to whom the parties had been referred for a “co-parenting class,” conducted eleven joint sessions, which he viewed as mediation. Deborah missed two other sessions. Dr. Bradbury found that Deborah was “consistently quite hostile” toward Alex, whereas Alex was willing to have an amicable relationship with Deborah. Dr. Bradbury finally terminated the sessions because they were going nowhere.
The parties were unable to resolve Alex’s February 11, 1998 OSC by stipulation, so the matter went to an evidentiary hearing over several days in August 1999. By that time, Alex had married, he and his new wife had already had a son, and were expecting a second child. Gregory was due to start kindergarten in September 1999, and Deborah had already begun the process of enrolling him in a public school near her home while Alex had reserved a space for the boy in a school hear his home. Dr. Bradbury testified at the hearing as to his opinion regarding the parents’ respective attitudes toward one another.
Deborah contended that the court could not modify the existing custody order without a showing of change of circumstance. The trial court rejected her argument, stating on the record, “This is an initial trial on custody,” and ruled that therefore the “standard to apply in determining custody is best interests of the child.” The court entered a judgment of paternity, changing custody of Gregory to Alex.
The court of appeal reversed, holding that the stipulated order of September 30, 1996 was “an initial judicial determination of custody — i.e., the judgment in this matter — and that the June 24, 1997 stipulated order was therefore a post-judgment order. Therefore, the trial court could modify that judicial determination “only if changed circumstances make such an order essential or expedient for the welfare of the child.”
The Montenegro court relied on a series of California Supreme Court decisions which successively reinforce the “changed-circumstance rule”: In re Marriage of Carney (1979) 24 Cal.3d 725; Burchard v. Garay (1986) 42 Cal.3d 531; and In re Marriage of Burgess (1996) 13 Cal.4th 25. Quoting from Burchard v. Garay, the Montenegro court observed, “The changed-circumstance rule is not a different test, devised to supplant the statutory test, but an adjunct to the best-interest test. It provides, in essence, that once it has been established that a particular custodial arrangement is in the best interests of the child, the court need not reexamine that question. Instead, it should preserve the established mode of custody unless some significant change in circumstances indicates that a different arrangement would be in the child’s best interest.” [42 Cal.3d at 535]
Alex argued that the changed-circumstance rule did not apply because the June 24, 1997 order was entered pursuant to stipulation. The court disagreed, noting that in In re Marriage of Biallas (1998) 65 Cal.App.4th 755, that same court had rejected a similar argument.
Alex also argued that the changed-circumstances rule did not apply because the parties were sharing joint physical custody, citing the “footnote 12″ exception of Burgess, supra. Again, the Montenegro panel rejected this argument, noting first that this was not a move-away case and questioning whether the exception would even apply where neither parent seeks to relocate. Interestingly, the opinion fails to mention In re Marriage of Birnbaum (1989) 211 Cal.App.3d 1508, an opinion authorized by Justice Donald B. King which held that no change of circumstances need be shown to revise a coparenting residential arrangement. Even if the “footnote 12″ exception could apply in non-move-away situations, the Montenegro court went on to say, these parents were not co-parenting under the standard established in Biallas (one overnight per week and every other weekend is “liberal visitation,” not joint physical custody).
Montenegro also appears to stand for the proposition (albeit unstated in that case) that a change of circumstances is not created merely by virtue of the child getting older or passing certain developmental milestones. Notably, Gregory was about to enter kindergarten at the time of the custody hearing, and in fact, the necessity of selecting one school for him was one of the issues raised at the hearing. By that time, Gregory also had one half-sibbling and soon would have a second. Nevertheless, the panel did not refer to either event as a change of circumstance.
Thus, Montenegro continues the trend of reinforcing and tightening the changed-circumstances requirement, as well as reiterating that it applies to all final custody decrees, whether stipulated or contested.
How can a parent in Alex’s situation — one who is apparently more willing to share with the other parent frequent and continuing contact with the children — demonstrate a change of circumstances? It is helpful to analogize to spousal support cases such as In re Marriage of Aninger (1990) 220 Cal.App.3d 230, holding that a change of circumstances can be found where there has been a failure of the assumptions underlying the judgment.
In the context of child custody and visitation, therefore, knowledgeable counsel can “plan ahead” for an anticipated modification by inserting findings or benchmarks into a judgment. For example, a judgment can be based on a requirement that the parties participate in conjoint counseling “in good faith.” Or the judgment can specify that a party’s failure to permit any single visit or a small percentage of visits will comprise a change of circumstances. Or the judgment can provide that it will be modified when the oldest child begins kindergarten.
In the absence of such clear-cut assumptions, however, a party can and should present evidence of a change of circumstances at a modification hearing. Expert testimony can be effective toward that end.
In Montenegro, Dr. Bradbury testified about Deborah’s inability to share or communicate with Alex, but the record is silent on the deterioration, if any, in Deborah’s attitude, perhaps because Alex’s counsel did not believe Alex needed to show a change of circumstances. If asked, Dr. Bradbury might have been able to supply the missing evidence.
Additionally, the record is silent on how Deborah’s attitude impacted Gregory, and how her conduct might have been more damaging to a five-year-old than to a younger child. While we can take it for granted that a child will continue to grow older and therefore attain certain milestones of age, the same cannot necessarily be said about other developmental milestones. Perhaps Alex could have demonstrated that Gregory was now experiencing developmental or psychological delays as a result of Deborah’s unwillingness to cooperate with Alex. For example, was Gregory beginning to exhibit signs of social difficulties, learning disorders, or other problems.
Such evidence might have sustained a finding of a change of circumstances and thus avoided the reversal in Montenegro. Regrettably, the record was not made at the trial level. As family law practitioners, we can use Montenegro as an instructional aid, to the benefit of our clients.
To read more and visit our web site click here. http://la-family-law.com
Joint Physical Custody – What Does It Really Mean?
“Time Care, The Definition of Joint Custody Remains Elusive”
Los Angeles Daily Journal , issue #173, Vol 111, 9/8/98
What, exactly, is joint physical custody? Is it “fifty-fifty”? Is 33 percent enough? What about a 60-40 arrangement; or five nights out of 14? Is there some other “bright line,” by which courts and litigants can readily see that a particular custodial arrangement is, or is not, joint physical custody? As Justice Donald King wrote some years ago in In re Marriage of Birnbaum (1989) 211 Cal.App.3d 1508:
It is doubtful that any two words mean as many different things to as many different people as the words “joint custody.” 211 Cal.App.3d at 1515.
And it is equally doubtful that any two words have produced as much confusion in as short a time-span as those words applied in the context of cases in which one parent seeks to relocate with the parties’ children.
Recently, in In re Marriage of Biallas (1998) 65 Cal.App.4th 755, an appellate court has told us what is not joint custody, for purposes of determining the ease with which one parent may relocate with the parties’ child over the objection of the other. Biallas held that in a “move-away” case, a father who had his son in his care every other weekend from Friday evening until Monday morning, and one overnight each week, did not share joint physical custody. In so ruling, the Biallas court reversed a trial court ruling to the contrary.
Since 1980, when joint custody first became a statutorily-sanctioned form of custody order, knowledgeable family law practitioners have felt secure in advising clients that denominating a parenting plan as “joint physical custody” or “sole physical custody with rights of visitation” was less important than the actual custodial arrangement.
However, first in Birnbaum, supra, and more recently in In re Marriage of Burgess (1996) 13 Cal.4th 25, California courts have resurrected the significance of the de jure characterization of the custody order.
In Birnbaum, the appellate court addressed the issue of how a trial court is to determine whether the custodial arrangement is joint physical custody and whether joint custody requires a precisely equal division of custodial time. “Equal division of a child’s time between the parents is not the hallmark of joint custody,” the appellate court held [211 Cal.App.3d at 1515] — the bright line, if there is one, is not at 50 percent.
Burgess, supra, raised the ante in the quest to quantify “joint physical custody.” In Burgess, the California Supreme Court held that a parent having sole physical custody of a child has a presumptive right to relocate with that child absent a showing that the removal of the child would not be prejudicial to its rights or welfare. However, a different standard is imposed where the parties share joint physical custody. In now-famous footnote 12 of that opinion, the Burgess court wrote:
A different analysis may be required when parents share joint physical custody of the minor children under an existing order and in fact, and one parent seeks to relocate with the minor children. In such cases, the custody order “may be modified or terminated upon the petition of one or both parents or on the court’s own motion if it is shown that the best interest of the child requires modification or termination of the order.” (Fam. Code, §3087.) The trial court must determine de novo what arrangement for primary custody is in the best interest of the minor children. [13 Cal.4th 40 n. 12]
Thus, if the parent wishing to relocate has joint physical custody, that parent’s burden of proof is substantially higher than if he or she has sole physical custody.
Unfortunately, Burgess generated confusion over the meaning of “joint custody.” The Burgess children had had almost daily contact with each of their parents during the initial period after separation, and thereafter, the children saw their father regularly and father had a “daily visitation routine,” although the mother had sole physical custody. This arrangement could easily have been deemed joint physical custody.
In the 27 months between Burgess and Biallas, four appellate decisions have interpreted the meaning of “joint physical custody” in the context of Burgess’s footnote 12 in various and contradictory ways. Two of those decisions resulted in reversals, two in affirmances; two of these decisions involved de novo review of joint custody arrangements, two involved sole custody.
The first two appellate decisions, Brody v. Kroll (1996) 45 Cal.App.4th 1732, and In re Marriage of Whealon (1997) 53 Cal.App.4th 132, were written by the same division of the Fourth District Court of Appeal. These decisions in particular exemplify the difficulty inherent in trying to define a custodial arrangement as “sole” or “joint.”
In Brody, the paternity judgment provided that mother had primary physical custody of the child. Father spent Tuesday and Friday nights and all day Saturday with the child, except on those Saturdays when minor attended Hebrew school, plus “more extensive periods during summer.” Actually, father saw the boy as frequently as four or five days a week. Mother sought to relocate with the childover father’s objection, and the trial court granted her request.
The appellate court disagreed and reversed, ruling that on remand the trial court must determine custody de novo, stating that the parties had “an actual joint custody arrangement” both “under an existing order and in fact.” In Whealon, the Court of Appeal affirmed a trial court’s ruling that father was not sharing joint physical custody and that permitted the mother to relocate with the minor child. Mother had “primary physical custody” of the child; father had periods of custody every other weekend from Friday at 6:00 p.m. to Monday at 9:00 a.m. and one midweek overnight each week from Wednesday at 6:00 p.m. to Thursday at 9:00 a.m., plus certain time on holidays. For child support calculation purposes, this was held to be 28 percent. The court characterized this arrangement as “a case where one parent had, in substance, primary physical custody of the child and the other generous visitation rights.” 53 Cal.App.4th at 142.
The custodial arrangement in Whealon was the same as that in Biallas. It appears that the aggregate amount of time which the father in Brody spent with his child was more frequent, but probably not more extensive, than the amount of fathers’ custodial times in Biallas and Whealon . Yet the Brody court found that arrangement to be joint physical custody as a matter of law, the opposite conclusion as that reached by the Biallas court.
The two more recent of the pre-Biallas appellate decisions deepen the confusion.
In Ruisi v. Thieriot (1997), 53 Cal.App.4th 1197, the parties’ dissolution judgment provided for “shared physical parenting.” By stipulation, the father was with the boy Mondays from 3:30 p.m. to 7:00 p.m., Thursdays from 1:00 p.m. to 7:00 p.m., and Saturdays all day, although his time increased over the years. Despite the appellate court’s statement that “it is not altogether clear hat under the 1986 agreement Kip and Paula truly shared joint physical custody,” [53 Cal.App.4th at 1205], the time-sharing arrangement in Ruisi does not seem much different from that in Brody. Nevertheless, the former was deemed “joint” and the latter “sole.”
Finally, in In re Marriage of Condon (1998) 62 Cal.App.4th 533, the court discussed a parenting arrangement which it described as falling “somewhere in between Brody and Whealon.” In Condon, the court ordered joint legal and joint physical custody to the parties. By time of trial, father had custody on alternating weekends from Thursday afternoon until Monday morning, every Tuesday after school until 7:00 p.m., and on alternating Thursdays from after school until Friday morning. This custodial arrangement was close to equal time-sharing — it does not appear to fall “somewhere in between Brody and Whealon.”
Thus, Burgess and the five of its progeny that have addressed the issue of quantifying joint custody have left us with more questions than answers.
Although we now know, as a matter of law, that a parent who cares for the children every other weekend and one midweek overnight is not sharing joint physical custody, there are myriad custodial arrangements which could be characterized either way. And we have no appellate guidance whatsoever as to the impact of age and other factors on how a time-sharing plan will be characterized.
For example, custody plans for infants and younger toddlers frequently provide for one parent to have frequent, short periods of time with the child, perhaps four to eight hours, three to five times a week. Is this a joint custody arrangement, as in Brody, or a sole custody order as in Burgess and Ruisi?
What about the case of older children, who may be nominally in the custody of one parent, but spend the great majority of waking time at school, day care, and extra-curricular activities, and the balance of time (principally weekends) relatively equally between the parents? Similar considerations apply where the custodial parent spends long hours at work and, necessarily, away from the children.
And what weight is given to the child’s vacation time, which often is spent primarily with the “non-custodial parent.” If vacations are accorded equal weight with school periods, a non-custodial parent may actually have the children in his or her care close to half the year.
Counsel trying to negotiate this labyrinth may well look to Burgess for guidance, since the Supreme Court devoted a considerable portion of the opinion to emphasizing “the paramount need for continuity and stability in custody arrangements — and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker.” 13 Cal.4th at 32-33. In this and other aspects of the decision, the Supreme Court relied heavily on In re Marriage of Carney 1979) 24 Cal.3d 725, the seminal Supreme Court decision regarding changes of custody.
As did the Burgess court, the family law practitioner may return to Carney and note that Carney gave no consideration to toting up the seconds, minutes, hours and days that a child spends with one parent or the other. Rather, as Justice Stanley Mosk wrote for the Carney court:
[T]he essence of parenting is not to be found in the harried rounds of daily carpooling endemic to modern suburban life, or even in the doggedly dutiful acts of “togetherness” committed every weekend by well-meaning fathers and mothers across America. Rather, its essence lies in the ethical, emotional, and intellectual guidance the parent gives to the child throughout his formative years, and often beyond. [24 Cal.3d at 739]
An analysis focused on what each parent, respectively, brings to the children will, in the end, more thoroughly serve to illuminate the true nature of a parenting arrangement as joint or sole, than will reliance on the clock and calendar. Pending further appellate guidance, however, size (or at least, number of days) still matters.
To read more and to visit our web site click here. http://la-family-law.com
Los Angeles Daily Journal , issue #173, Vol 111, 9/8/98
What, exactly, is joint physical custody? Is it “fifty-fifty”? Is 33 percent enough? What about a 60-40 arrangement; or five nights out of 14? Is there some other “bright line,” by which courts and litigants can readily see that a particular custodial arrangement is, or is not, joint physical custody? As Justice Donald King wrote some years ago in In re Marriage of Birnbaum (1989) 211 Cal.App.3d 1508:
It is doubtful that any two words mean as many different things to as many different people as the words “joint custody.” 211 Cal.App.3d at 1515.
And it is equally doubtful that any two words have produced as much confusion in as short a time-span as those words applied in the context of cases in which one parent seeks to relocate with the parties’ children.
Recently, in In re Marriage of Biallas (1998) 65 Cal.App.4th 755, an appellate court has told us what is not joint custody, for purposes of determining the ease with which one parent may relocate with the parties’ child over the objection of the other. Biallas held that in a “move-away” case, a father who had his son in his care every other weekend from Friday evening until Monday morning, and one overnight each week, did not share joint physical custody. In so ruling, the Biallas court reversed a trial court ruling to the contrary.
Since 1980, when joint custody first became a statutorily-sanctioned form of custody order, knowledgeable family law practitioners have felt secure in advising clients that denominating a parenting plan as “joint physical custody” or “sole physical custody with rights of visitation” was less important than the actual custodial arrangement.
However, first in Birnbaum, supra, and more recently in In re Marriage of Burgess (1996) 13 Cal.4th 25, California courts have resurrected the significance of the de jure characterization of the custody order.
In Birnbaum, the appellate court addressed the issue of how a trial court is to determine whether the custodial arrangement is joint physical custody and whether joint custody requires a precisely equal division of custodial time. “Equal division of a child’s time between the parents is not the hallmark of joint custody,” the appellate court held [211 Cal.App.3d at 1515] — the bright line, if there is one, is not at 50 percent.
Burgess, supra, raised the ante in the quest to quantify “joint physical custody.” In Burgess, the California Supreme Court held that a parent having sole physical custody of a child has a presumptive right to relocate with that child absent a showing that the removal of the child would not be prejudicial to its rights or welfare. However, a different standard is imposed where the parties share joint physical custody. In now-famous footnote 12 of that opinion, the Burgess court wrote:
A different analysis may be required when parents share joint physical custody of the minor children under an existing order and in fact, and one parent seeks to relocate with the minor children. In such cases, the custody order “may be modified or terminated upon the petition of one or both parents or on the court’s own motion if it is shown that the best interest of the child requires modification or termination of the order.” (Fam. Code, §3087.) The trial court must determine de novo what arrangement for primary custody is in the best interest of the minor children. [13 Cal.4th 40 n. 12]
Thus, if the parent wishing to relocate has joint physical custody, that parent’s burden of proof is substantially higher than if he or she has sole physical custody.
Unfortunately, Burgess generated confusion over the meaning of “joint custody.” The Burgess children had had almost daily contact with each of their parents during the initial period after separation, and thereafter, the children saw their father regularly and father had a “daily visitation routine,” although the mother had sole physical custody. This arrangement could easily have been deemed joint physical custody.
In the 27 months between Burgess and Biallas, four appellate decisions have interpreted the meaning of “joint physical custody” in the context of Burgess’s footnote 12 in various and contradictory ways. Two of those decisions resulted in reversals, two in affirmances; two of these decisions involved de novo review of joint custody arrangements, two involved sole custody.
The first two appellate decisions, Brody v. Kroll (1996) 45 Cal.App.4th 1732, and In re Marriage of Whealon (1997) 53 Cal.App.4th 132, were written by the same division of the Fourth District Court of Appeal. These decisions in particular exemplify the difficulty inherent in trying to define a custodial arrangement as “sole” or “joint.”
In Brody, the paternity judgment provided that mother had primary physical custody of the child. Father spent Tuesday and Friday nights and all day Saturday with the child, except on those Saturdays when minor attended Hebrew school, plus “more extensive periods during summer.” Actually, father saw the boy as frequently as four or five days a week. Mother sought to relocate with the childover father’s objection, and the trial court granted her request.
The appellate court disagreed and reversed, ruling that on remand the trial court must determine custody de novo, stating that the parties had “an actual joint custody arrangement” both “under an existing order and in fact.” In Whealon, the Court of Appeal affirmed a trial court’s ruling that father was not sharing joint physical custody and that permitted the mother to relocate with the minor child. Mother had “primary physical custody” of the child; father had periods of custody every other weekend from Friday at 6:00 p.m. to Monday at 9:00 a.m. and one midweek overnight each week from Wednesday at 6:00 p.m. to Thursday at 9:00 a.m., plus certain time on holidays. For child support calculation purposes, this was held to be 28 percent. The court characterized this arrangement as “a case where one parent had, in substance, primary physical custody of the child and the other generous visitation rights.” 53 Cal.App.4th at 142.
The custodial arrangement in Whealon was the same as that in Biallas. It appears that the aggregate amount of time which the father in Brody spent with his child was more frequent, but probably not more extensive, than the amount of fathers’ custodial times in Biallas and Whealon . Yet the Brody court found that arrangement to be joint physical custody as a matter of law, the opposite conclusion as that reached by the Biallas court.
The two more recent of the pre-Biallas appellate decisions deepen the confusion.
In Ruisi v. Thieriot (1997), 53 Cal.App.4th 1197, the parties’ dissolution judgment provided for “shared physical parenting.” By stipulation, the father was with the boy Mondays from 3:30 p.m. to 7:00 p.m., Thursdays from 1:00 p.m. to 7:00 p.m., and Saturdays all day, although his time increased over the years. Despite the appellate court’s statement that “it is not altogether clear hat under the 1986 agreement Kip and Paula truly shared joint physical custody,” [53 Cal.App.4th at 1205], the time-sharing arrangement in Ruisi does not seem much different from that in Brody. Nevertheless, the former was deemed “joint” and the latter “sole.”
Finally, in In re Marriage of Condon (1998) 62 Cal.App.4th 533, the court discussed a parenting arrangement which it described as falling “somewhere in between Brody and Whealon.” In Condon, the court ordered joint legal and joint physical custody to the parties. By time of trial, father had custody on alternating weekends from Thursday afternoon until Monday morning, every Tuesday after school until 7:00 p.m., and on alternating Thursdays from after school until Friday morning. This custodial arrangement was close to equal time-sharing — it does not appear to fall “somewhere in between Brody and Whealon.”
Thus, Burgess and the five of its progeny that have addressed the issue of quantifying joint custody have left us with more questions than answers.
Although we now know, as a matter of law, that a parent who cares for the children every other weekend and one midweek overnight is not sharing joint physical custody, there are myriad custodial arrangements which could be characterized either way. And we have no appellate guidance whatsoever as to the impact of age and other factors on how a time-sharing plan will be characterized.
For example, custody plans for infants and younger toddlers frequently provide for one parent to have frequent, short periods of time with the child, perhaps four to eight hours, three to five times a week. Is this a joint custody arrangement, as in Brody, or a sole custody order as in Burgess and Ruisi?
What about the case of older children, who may be nominally in the custody of one parent, but spend the great majority of waking time at school, day care, and extra-curricular activities, and the balance of time (principally weekends) relatively equally between the parents? Similar considerations apply where the custodial parent spends long hours at work and, necessarily, away from the children.
And what weight is given to the child’s vacation time, which often is spent primarily with the “non-custodial parent.” If vacations are accorded equal weight with school periods, a non-custodial parent may actually have the children in his or her care close to half the year.
Counsel trying to negotiate this labyrinth may well look to Burgess for guidance, since the Supreme Court devoted a considerable portion of the opinion to emphasizing “the paramount need for continuity and stability in custody arrangements — and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker.” 13 Cal.4th at 32-33. In this and other aspects of the decision, the Supreme Court relied heavily on In re Marriage of Carney 1979) 24 Cal.3d 725, the seminal Supreme Court decision regarding changes of custody.
As did the Burgess court, the family law practitioner may return to Carney and note that Carney gave no consideration to toting up the seconds, minutes, hours and days that a child spends with one parent or the other. Rather, as Justice Stanley Mosk wrote for the Carney court:
[T]he essence of parenting is not to be found in the harried rounds of daily carpooling endemic to modern suburban life, or even in the doggedly dutiful acts of “togetherness” committed every weekend by well-meaning fathers and mothers across America. Rather, its essence lies in the ethical, emotional, and intellectual guidance the parent gives to the child throughout his formative years, and often beyond. [24 Cal.3d at 739]
An analysis focused on what each parent, respectively, brings to the children will, in the end, more thoroughly serve to illuminate the true nature of a parenting arrangement as joint or sole, than will reliance on the clock and calendar. Pending further appellate guidance, however, size (or at least, number of days) still matters.
To read more and to visit our web site click here. http://la-family-law.com
Developments and Advances in Fertility Sciences Often “Cloud” the Issue as to Parentage
ROBERT B., Plaintiff and Respondent, DENISE B., Plaintiff and Appellant, v. SUSAN B., Defendant and Appellant. H024926. COURT OF APPEAL OF CALIFORNIA, SIXTH APPELLATE DISTRICT
2003 Cal. App. LEXIS 873
June 13, 2003, Filed
Developments and advances in fertility sciences often “cloud” the issue as to parentage from a legal standpoint. The recent case of Robert B. and Denise B. v. Susan B. { WE DO NOT HAVE THE CITE YET} deals with the interplay of law and science.
Robert B. and Denise B a married couple contracted with a fertility clinic. Pursuant to that contract Robert and Denise obtained from an anonymous donor an egg for fertilization by Robert’s sperm. The embryos were implanted into Denise and she would then, presumably give birth. Any remaining embryos were to be frozen and stored for the couples exclusive use.
Susan B., (an unrelated third party), also contracted with the same fertility clinic for anonymous genetic material (ovum and sperm) to be implanted in Susan for her pregnancy. It was Susan’s intent that the donors would have no parental/paternity rights with reference to any resulting child.
However, the fertility clinic inadvertently mixed up some of the eggs fertilized by Robert and used same in Susan’s anonymous procedure. This “inadvertent” implantation eventually resulted in the birth of Daniel.
Robert and Denise filed a paternity action regarding Daniel. The trial court dismissed Denise from the action for lack of standing. The court also determined that Robert was Daniel’s father. Both Susan and Denise appealed from the trial court’s ruling. The appellate court affirmed both decisions of the trial court.
In affirming Robert’s claim that he is in fact the biological parent of Daniel, the Appellate Court relied on Family Code Section 7630(c). The Code states that:
“An action to determine the existence of a father and child relationship … may be brought by … a man alleged or alleging himself to be the father …”
It was very clear that Robert was the biological father of Daniel. However, Susan contended that the court should liberally interpret Family Code Section 7613(b) which states:
“The donor of semen provided to a licensed physician … for use in artificial insemination of a woman, other than the donor’s wife, is treated in law as if he was not the natural father of a child thereby conceived.”
The court rejected Susan’s position summarily. In reference to the non application of Family Code Section 7613(b) the court stated,
“It is uncontested that Robert did not provide the semen for purpose of inseminating any one other than Denise.”
The court has previously not given Family Code Section 7613(b) a liberal or expansive interpretation in the case of Jordan C. v. Mary K. (1986) 179 Cal.App.3d 386, 224 Cal.Rptr. 530. In that case, Mary K. and her friend Victoria obtained Jordan C.’s semen for an artificial insemination of Mary K. No licensed physician was involved in the artificial insemination and in fact the insemination was facilitated by some medical training that Mary K. had in light of the fact that she was a nurse. The court found that the limitations on parentage found in Family Code Section 7613(b) did not apply to Jordan C. in light of the fact that no licensed physician was involved in the artificial insemination process and as such, the preclusion of parentage did not apply. This case has been referred to as the “turkey baster or unofficial artificial inseminator exception” case
Susan B. also made the argument that finding parentage on Roberts’ part would undermine the “integrity of her single parent family unit”. Her contention was actually similar to the one that Mary K. asserted in Jordan C. v. Mary K. In that case it was argued that a ruling of parentage on Jordan C’s part would undermine the “family autonomy” that Mary K. and her friend Victoria had established.
The court in Jordan C. denied Mary’s contention by asserting that Mary was essentially putting the cart before the horse because the court had to determine what constituted the minor’s “family” in the legal/biological sense of the term before the court could address the issue of family autonomy.
In Robert B. v. Susan B., the court stated that Susan’s concern about the autonomy of single parent families would be more appropriately addressed by the legislature as opposed to the courts.
The court also affirmed the dismissal with prejudice of Denise B. as an interested party in the action. The court determined that Denise B., although married to Robert, had no biological connection whatsoever to the minor Daniel.
Denise asserted that the court should extend the ruling of Marriage of Buzzanca (1998) 61 Cal.App.4th 1410. In that case, husband and wife obtained the services of a surrogate to gestate a child who was not biologically connected to either party. Prior to the minor’s birth a divorce action commenced and husband contended that there was in fact no children of the marriage and as such, he should not be liable or responsible for child support. The trial court agreed with husband. The matter was taken up on appeal by wife and reversed. The appellate court determined that “but for” the surrogate contract that husband and wife had entered into the minor child would not have been born into the marriage.
Denise was arguing that the intention of her and Robert was that any children born from any eggs fertilized by Robert were intended to be exclusively the children of Robert and Denise. The trial court was not persuaded by this argument. Neither was the appellate court.
The appellate court stated that,
“It is not necessary to discuss the Buzzanca court’s comparison of a surrogacy contract to husband’s consent to artificial insemination of his wife. We need only observe that the case before us is completely distinguishable. Susan did not agree to be a surrogate under a contract with the Denise; … We decline Denise’s implied invitation to extend Buzzanca to a situation that (1) a woman has no genetic or gestational relationship to the child, (2) there is no status comparable to that of a presumed father …, and (3) another woman does assert a legally recognizable claim. … It is undisputed that Denise has no factual basis under which to claim the status of a presumed
mother.”
As such, the appellate court found that the trial court was correct in determining that Robert was Daniel’s father and that Susan was Daniel’s mother.
As surrogacy and paternity clinics further develop in California, we can expect more cases determining and delineating the parent-child relationship. As Family Code Section 7570 clearly states,
“There is a compelling interest in establishing paternity for all children.”
The only caveat may be that it is not a straight forward determination.
2003 Cal. App. LEXIS 873
June 13, 2003, Filed
Developments and advances in fertility sciences often “cloud” the issue as to parentage from a legal standpoint. The recent case of Robert B. and Denise B. v. Susan B. { WE DO NOT HAVE THE CITE YET} deals with the interplay of law and science.
Robert B. and Denise B a married couple contracted with a fertility clinic. Pursuant to that contract Robert and Denise obtained from an anonymous donor an egg for fertilization by Robert’s sperm. The embryos were implanted into Denise and she would then, presumably give birth. Any remaining embryos were to be frozen and stored for the couples exclusive use.
Susan B., (an unrelated third party), also contracted with the same fertility clinic for anonymous genetic material (ovum and sperm) to be implanted in Susan for her pregnancy. It was Susan’s intent that the donors would have no parental/paternity rights with reference to any resulting child.
However, the fertility clinic inadvertently mixed up some of the eggs fertilized by Robert and used same in Susan’s anonymous procedure. This “inadvertent” implantation eventually resulted in the birth of Daniel.
Robert and Denise filed a paternity action regarding Daniel. The trial court dismissed Denise from the action for lack of standing. The court also determined that Robert was Daniel’s father. Both Susan and Denise appealed from the trial court’s ruling. The appellate court affirmed both decisions of the trial court.
In affirming Robert’s claim that he is in fact the biological parent of Daniel, the Appellate Court relied on Family Code Section 7630(c). The Code states that:
“An action to determine the existence of a father and child relationship … may be brought by … a man alleged or alleging himself to be the father …”
It was very clear that Robert was the biological father of Daniel. However, Susan contended that the court should liberally interpret Family Code Section 7613(b) which states:
“The donor of semen provided to a licensed physician … for use in artificial insemination of a woman, other than the donor’s wife, is treated in law as if he was not the natural father of a child thereby conceived.”
The court rejected Susan’s position summarily. In reference to the non application of Family Code Section 7613(b) the court stated,
“It is uncontested that Robert did not provide the semen for purpose of inseminating any one other than Denise.”
The court has previously not given Family Code Section 7613(b) a liberal or expansive interpretation in the case of Jordan C. v. Mary K. (1986) 179 Cal.App.3d 386, 224 Cal.Rptr. 530. In that case, Mary K. and her friend Victoria obtained Jordan C.’s semen for an artificial insemination of Mary K. No licensed physician was involved in the artificial insemination and in fact the insemination was facilitated by some medical training that Mary K. had in light of the fact that she was a nurse. The court found that the limitations on parentage found in Family Code Section 7613(b) did not apply to Jordan C. in light of the fact that no licensed physician was involved in the artificial insemination process and as such, the preclusion of parentage did not apply. This case has been referred to as the “turkey baster or unofficial artificial inseminator exception” case
Susan B. also made the argument that finding parentage on Roberts’ part would undermine the “integrity of her single parent family unit”. Her contention was actually similar to the one that Mary K. asserted in Jordan C. v. Mary K. In that case it was argued that a ruling of parentage on Jordan C’s part would undermine the “family autonomy” that Mary K. and her friend Victoria had established.
The court in Jordan C. denied Mary’s contention by asserting that Mary was essentially putting the cart before the horse because the court had to determine what constituted the minor’s “family” in the legal/biological sense of the term before the court could address the issue of family autonomy.
In Robert B. v. Susan B., the court stated that Susan’s concern about the autonomy of single parent families would be more appropriately addressed by the legislature as opposed to the courts.
The court also affirmed the dismissal with prejudice of Denise B. as an interested party in the action. The court determined that Denise B., although married to Robert, had no biological connection whatsoever to the minor Daniel.
Denise asserted that the court should extend the ruling of Marriage of Buzzanca (1998) 61 Cal.App.4th 1410. In that case, husband and wife obtained the services of a surrogate to gestate a child who was not biologically connected to either party. Prior to the minor’s birth a divorce action commenced and husband contended that there was in fact no children of the marriage and as such, he should not be liable or responsible for child support. The trial court agreed with husband. The matter was taken up on appeal by wife and reversed. The appellate court determined that “but for” the surrogate contract that husband and wife had entered into the minor child would not have been born into the marriage.
Denise was arguing that the intention of her and Robert was that any children born from any eggs fertilized by Robert were intended to be exclusively the children of Robert and Denise. The trial court was not persuaded by this argument. Neither was the appellate court.
The appellate court stated that,
“It is not necessary to discuss the Buzzanca court’s comparison of a surrogacy contract to husband’s consent to artificial insemination of his wife. We need only observe that the case before us is completely distinguishable. Susan did not agree to be a surrogate under a contract with the Denise; … We decline Denise’s implied invitation to extend Buzzanca to a situation that (1) a woman has no genetic or gestational relationship to the child, (2) there is no status comparable to that of a presumed father …, and (3) another woman does assert a legally recognizable claim. … It is undisputed that Denise has no factual basis under which to claim the status of a presumed
mother.”
As such, the appellate court found that the trial court was correct in determining that Robert was Daniel’s father and that Susan was Daniel’s mother.
As surrogacy and paternity clinics further develop in California, we can expect more cases determining and delineating the parent-child relationship. As Family Code Section 7570 clearly states,
“There is a compelling interest in establishing paternity for all children.”
The only caveat may be that it is not a straight forward determination.
Its Not Final Until It’s Final
In the Supreme Court case of Montenegro v. Diaz (2001), 26 Cal.4th 249; 109 Cal.Rpt.2d 575, the Court clearly stated that a custody stipulation entered into by the parties will not constitute a final judgment of custody unless there is a “clear, affirmative indication” (Page 581) that the parties intended it to constitute a final judgment of custody. The practical effect of this finding is that if there is not a final adjudication of custody, any modification or changes in custody require only a showing of “best interest” and not a showing of the more difficult “a change of circumstances”. In custody litigation, this is a very significant difference. Often, a change in the custody/visitation schedule may be appropriate post judgment based upon the child’s age, multiple attachments, passage of time or other changing social and developmental needs that would impact upon a child’s “best interest”. However, parties are often unable to establish that the aforementioned happenings constitute result a “change of circumstances”. This increased post judgment burden is particularly important in “move away” cases where one party has “custody” and the other party has only “visitation”.
What constitutes the parties intention to make a final judgment of custody? In the case of Rose v. Richardson, (2002 DJDAR 11827) the Court for the first time applies the holding of Montenegro v. Diaz to a “move away” case and finds that the traditional and common mechanisms used by family law litigants in stipulations may not always create a final judgment of custody.
The facts of Rose v. Richardson are standard to most family law matters. The parties were married on September 18, 1993. The minor child was born on October 16, 1998. They separated in May 2000; a Judgment dissolving the parties’ marriage was entered into on March 14, 2001.
The language contained in the stipulation of March 2001 appeared to reflect the reality of the parties’ desire to resolve finally and completely all issues.
As the Judgment stated:
“The purpose of this Judgment is to effect a complete, final and permanent settlement and adjustment of all the parties’ respective property rights, spousal support claims and any other financial rights and obligations…. In addition, it is the intent of the parties to effect a reasonable and fair settlement of the issues of child support and child custody based on the best interest of their child.”
With regards to custody and visitation, the parties stipulated that they would have joint legal custody, and that primary physical custody of the minor would be awarded to the mother with “reasonable” visitation awarded to the father. In the event that any disputes arose, prior to filing any modification of custody and visitation, the parties had to first go to an agreed-upon therapist or counselor. There was no specificity as to what constituted “reasonable” visitation.
In essence, the Judgment contained standard and customary language that litigants and family law attorneys frequently use when resolving, by stipulation, dissolution matters. Often, the parties enter into a custody order where specific visitation is not laid out.
In October 2001, father filed a modification indicating that he and the mother had not been able to work out reasonable visitation. Concurrently, mother filed her own action requesting a “move away”.
The court determined that the father had approximately 15% time share pursuant to the judgment and, as such, having only visitation and not joint custody, was subject to a stricter evidentiary showing than “best interest” in order to defeat the presumptive right to move by a custodial parent. Further inquiry did not warrant a “de novo review” pursuant to In re Marriage of Burgess (1996) 13 Cal.4th 25. Burgess, holds that when a parent, who has an existing order for joint custody and has carried out same, wants to contest a relocation by the other parent, the court must determine de novo what is in the child’s best interest. The Rose trial court found that mother already had custody pursuant to a judgment and with a presumptive right to move with the child, pursuant to Family Code §7501, the burden on the non-moving non custodial parent to oppose such a move was more than simply a best interest test. The court felt that the father in this case had not overcome his higher burden. As such, the trial court granted mother’s move-away request.
The appellate court reversed.
The appellate court found that the trial court should have granted a “de novo” review, treating the custody and visitation matter as not a modification from a final judgment, but rather from a temporary order, and thus entitled to a full and new review as to what was in the present best interest of the child.
The appellate court found that there was no indication in the stipulated judgment that the parties had truly meant that the custody and visitation matters would be finally adjudicated as per Montenegro. As the court states:
“On the contrary, the language of the Judgment to which the parties consented warrants the opposite conclusion–the parents disagreed and were to attempt to resolve the custody and visitation issue…. We conclude, therefore, that the March 14, 2001 Order was not intended by the parties to be a final judicial determination of custody. Because there was no clear, affirmative indication the parties intended the stipulation and resulting March 14, 2001 Judgment to be a final judicial determination of custody, the father was not required to show that a significant change of circumstances justified modifying the custody order…. Moreover, the trial court was required, exercising its wide discretion to make an initial custody and visitation determination after considering all the circumstances bearing on the best interest of the child.” (Page 11830).
As can be seen from the appellate court in Rose v. Richardson, unless the parties make the requisite “clear, affirmative indication” by specific statement of intention in a stipulated judgment regarding custody it will be found that the existing judgment of custody and visitation is not a final custody visitation order.
Trial courts often feel restricted by the legal standard of “change of circumstance”. This is particularly true in move away cases. Justice Yeagan, in his dissent in In re Marriage of Bryant, 91 Cal.App.4th 789, 110 Cal Rptr. 2d 791, was “hopeful that the California Supreme Court did not intend that Burgess be interpreted in a “straight jacket fashion” (Bryant at p.35). Rose v. Richardson is first post Montenegro case to revisit Burgess and begin to tailor this perceived restraint into a child-centered fit.
Many commentators have criticized the court in Montenegro v. Diaz for not totally scraping the “change of circumstances” rule. In fact, in the last paragraph of the Montenegro case the Supreme Court clearly skirts that issue and says “Accordingly, we leave any review of the changed circumstance rule for another day” (Page 582).
The issue of what is the appropriate test in move away cases is again before the Supreme court in Marriage of LaMusga, S107355. The adverse impact on a child in not revising a parenting plan which no longer meets the child’s needs, no matter what the procedural posture of the case, hopefully will be addressed. Until then, the Rose v. Richardson decision gives us a bit more guidance on this procedural posturing in the context of that is a final judgment in a move away case.
To read more and visit our web site click here. http://la-family-law.com
What constitutes the parties intention to make a final judgment of custody? In the case of Rose v. Richardson, (2002 DJDAR 11827) the Court for the first time applies the holding of Montenegro v. Diaz to a “move away” case and finds that the traditional and common mechanisms used by family law litigants in stipulations may not always create a final judgment of custody.
The facts of Rose v. Richardson are standard to most family law matters. The parties were married on September 18, 1993. The minor child was born on October 16, 1998. They separated in May 2000; a Judgment dissolving the parties’ marriage was entered into on March 14, 2001.
The language contained in the stipulation of March 2001 appeared to reflect the reality of the parties’ desire to resolve finally and completely all issues.
As the Judgment stated:
“The purpose of this Judgment is to effect a complete, final and permanent settlement and adjustment of all the parties’ respective property rights, spousal support claims and any other financial rights and obligations…. In addition, it is the intent of the parties to effect a reasonable and fair settlement of the issues of child support and child custody based on the best interest of their child.”
With regards to custody and visitation, the parties stipulated that they would have joint legal custody, and that primary physical custody of the minor would be awarded to the mother with “reasonable” visitation awarded to the father. In the event that any disputes arose, prior to filing any modification of custody and visitation, the parties had to first go to an agreed-upon therapist or counselor. There was no specificity as to what constituted “reasonable” visitation.
In essence, the Judgment contained standard and customary language that litigants and family law attorneys frequently use when resolving, by stipulation, dissolution matters. Often, the parties enter into a custody order where specific visitation is not laid out.
In October 2001, father filed a modification indicating that he and the mother had not been able to work out reasonable visitation. Concurrently, mother filed her own action requesting a “move away”.
The court determined that the father had approximately 15% time share pursuant to the judgment and, as such, having only visitation and not joint custody, was subject to a stricter evidentiary showing than “best interest” in order to defeat the presumptive right to move by a custodial parent. Further inquiry did not warrant a “de novo review” pursuant to In re Marriage of Burgess (1996) 13 Cal.4th 25. Burgess, holds that when a parent, who has an existing order for joint custody and has carried out same, wants to contest a relocation by the other parent, the court must determine de novo what is in the child’s best interest. The Rose trial court found that mother already had custody pursuant to a judgment and with a presumptive right to move with the child, pursuant to Family Code §7501, the burden on the non-moving non custodial parent to oppose such a move was more than simply a best interest test. The court felt that the father in this case had not overcome his higher burden. As such, the trial court granted mother’s move-away request.
The appellate court reversed.
The appellate court found that the trial court should have granted a “de novo” review, treating the custody and visitation matter as not a modification from a final judgment, but rather from a temporary order, and thus entitled to a full and new review as to what was in the present best interest of the child.
The appellate court found that there was no indication in the stipulated judgment that the parties had truly meant that the custody and visitation matters would be finally adjudicated as per Montenegro. As the court states:
“On the contrary, the language of the Judgment to which the parties consented warrants the opposite conclusion–the parents disagreed and were to attempt to resolve the custody and visitation issue…. We conclude, therefore, that the March 14, 2001 Order was not intended by the parties to be a final judicial determination of custody. Because there was no clear, affirmative indication the parties intended the stipulation and resulting March 14, 2001 Judgment to be a final judicial determination of custody, the father was not required to show that a significant change of circumstances justified modifying the custody order…. Moreover, the trial court was required, exercising its wide discretion to make an initial custody and visitation determination after considering all the circumstances bearing on the best interest of the child.” (Page 11830).
As can be seen from the appellate court in Rose v. Richardson, unless the parties make the requisite “clear, affirmative indication” by specific statement of intention in a stipulated judgment regarding custody it will be found that the existing judgment of custody and visitation is not a final custody visitation order.
Trial courts often feel restricted by the legal standard of “change of circumstance”. This is particularly true in move away cases. Justice Yeagan, in his dissent in In re Marriage of Bryant, 91 Cal.App.4th 789, 110 Cal Rptr. 2d 791, was “hopeful that the California Supreme Court did not intend that Burgess be interpreted in a “straight jacket fashion” (Bryant at p.35). Rose v. Richardson is first post Montenegro case to revisit Burgess and begin to tailor this perceived restraint into a child-centered fit.
Many commentators have criticized the court in Montenegro v. Diaz for not totally scraping the “change of circumstances” rule. In fact, in the last paragraph of the Montenegro case the Supreme Court clearly skirts that issue and says “Accordingly, we leave any review of the changed circumstance rule for another day” (Page 582).
The issue of what is the appropriate test in move away cases is again before the Supreme court in Marriage of LaMusga, S107355. The adverse impact on a child in not revising a parenting plan which no longer meets the child’s needs, no matter what the procedural posture of the case, hopefully will be addressed. Until then, the Rose v. Richardson decision gives us a bit more guidance on this procedural posturing in the context of that is a final judgment in a move away case.
To read more and visit our web site click here. http://la-family-law.com
Focus On The Best Interest of The Child
The Fourth Apellate District’s decision in Craig L. v. Sandy S. (2004) DJDAR 1505(a), is the latest pronouncement from the California Courts of Appeal holding that when there are dueling and/or competing “presumptions” of parentage the courts should focus on the best interest of the child, as opposed to maintaining the integrity of a marriage.
Craig L. and Sandy S., both married to others, had an affair in the Spring of 2001. Sandy became pregnant during the affair, and gave birth to Jeffrey S. on February 11, 2002. Routine blood testing at the hospital revealed that Brian could not be Jeffrey’s father. Sandy ultimately confessed the affiar to her husband, Brian, and told him that only Craig could be Jeffrey’s biological father. Craig L. also confessed to his wife, Katherine L. that he had had an affair. Craig and Katherine agreed to participate as fully as possible in Jeffrey’s upbringing. Craig L. signed a child support agreement for payments to Sandy S. The agreement provided that Craig’s wife Katherine would take care of Jeffrey three to four days a week in their family home. The visitation later included one overnight stay each week, as the child got older. Craig further alleged that he held Jeffrey out to his family and friends as his son.
On March 31, 2003, Sandy sent Craig an e-mail describing Craig’s care of Jeffrey S. as “childcare” and stating that the childcare was no longer needed.
On April 3, 2003 Craig filed a Petition for Paternity alleging that he was Jeffrey’s presumed father pursuant to Family Code Section 7611(d). The code section provides that a man is the presumed father of a minor child if he “receives the child into his home and opened holds out the child as his natural child.” Craig also filed a motion for visitation and requested a DNA test to confirm his paternity.
Prior to these matters being heard Sandy had joined her husband Brian as a party to the proceeding. Brian contended that since he was Sandy’s husband at the time of Jeffrey’s conception, he was afforded the benefit of two evidentiary presumptions that he was Jeffrey S.’s father, one of which creates a “conclusive” presumption of paternity.
Brian contended that, pursuant to Family Code Section 7540, he was conclusively presumed to be Jeffrey S.’s father. That section states, in pertinent part:
“…the child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage”.
Brian also contended that, pursuant to Family Code Section 7611(a), he was afforded an additional presumption of fatherhood of Jeffrey. Family Code Section 7611(a) states that a man is a presumed father if:
“(a) he and the child’s natural mother are or having been married to each other and the child is born during the marriage….”
The trial court found that Brian’s assertion of the Family Code Section 7611(a) presumption essentially trumped Craig L.’s presumption asserted under Family Code Section 7611(d). The trial court believed that “there is a strong public policy in California to maintain the integrity of the unitary family and the welfare of Jeffrey requires a concern for Jeffrey’s perceived legitimacy.” In determining that Craig did not have standing to assert paternity, the trial court found that it was not necessary to address Craig’s motion for temporary visitation and DNA testing.
Craig L. appealed and the Appellate Court reversed.
The Appellate Court found that Craig L.’s assertion of the presumption under Family Code Section 7611(d) was sufficient to confer on him the status of presumed father.
With regard to Brian’s assertion of the “conclusive” presumption of Family Code Section 7540, the court also found that although there mmight be a factual dispute as to whether Brian was in fact cohabiting with Sandy during the time in which Jeffrey was conceived, Family Code Section 7541 allows a “presumed father” along with the minor and the husband, to dispute parentage and/or establish paternity by filing a motion for paternity testing within two years after the minor’s birth. Thus, Craig L.’s application was deemed timely.
The court distinguished the facts in this case with the case of Dawn D. v. Superior Court (1998) 17 Cal.4th 932. In that case, a biological father had attempted to invoke the Section 7611(d) presumption, contending that the biological mother had not allowed him the opportunity to receive the child in his home and openly hold the child out as his own thereby preventing him from establishing his claim for paternity, notwithstanding his inability to hold the child out he claimed the presumption since he was prevented from doing so.
The court, in distinguishing this matter from Dawn D., found the fact pattern significantly different in this case. As the court stated on Page 15059:
“Craig’s claim is, of course, markedly different than the claim considered in Dawn D….Craig alleges facts which would give rise to the presumption provided by 7611(d). …in sum…where a couple permits such a relationship to develop they cannot unilaterally terminate it”.
The court then addressed the argument of Sandy and Brian that in light of the conclusive presumption provided by Section 5740 and the state’s conceded interest in preserving the stability of the marriages, that presumptions provided to husbands under Section 7611(a), will always outweigh than the presumption afforded men who have taken children into their homes and acknowledged them. The Appellate Court noted that such a “per se” rule, which could require termination of an existing paternal relationship in favor of preserving any marriage, without regard to the harm the child might suffer, is at direct odds with the entire statutory framework governing paternity actions.
“A rule which would not require evaluation of the nature of a man’s relationship with a child before terminating that relationship is not consistent with the well being of a child or the importance our court’s have placed on the existence of such a relationship”.
The Appellate Court recognized that the impact of the relationship between an unwed father and his child on the state’s interest in preserving marriage will vary from case to case. However, the Appellate Court noted that they could find no case that holds the state’s interest in marriage will always outweigh the interest of a man and a child with whom the man has established a paternal relationship. Indeed, the express language of Family Code Section 7612(b) requires that:
“If two or more presumptions arise under Section 7611 which conflict with each other the presumption which on the facts is founded on the weightier considerations of policy and logic controls.” [emphasis added]
The Court again noted that in Dawn D. the unwed father had not established an existing parent-child relationship and thus could not rely on a presumption of paternity.
Because the trial court did not engage in any fact finding with regards to the nature of Craig’s relationship with Jeffrey, it could not and did not properly weigh that relationship against the interest embodied in Brian’s status as a presumed father under Section 7611(a).
In weighing the conflicting interests under Section 7612(b), the trial court must, in the end, make a determination which gives the greatest weight to the minor’s well being.
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Craig L. and Sandy S., both married to others, had an affair in the Spring of 2001. Sandy became pregnant during the affair, and gave birth to Jeffrey S. on February 11, 2002. Routine blood testing at the hospital revealed that Brian could not be Jeffrey’s father. Sandy ultimately confessed the affiar to her husband, Brian, and told him that only Craig could be Jeffrey’s biological father. Craig L. also confessed to his wife, Katherine L. that he had had an affair. Craig and Katherine agreed to participate as fully as possible in Jeffrey’s upbringing. Craig L. signed a child support agreement for payments to Sandy S. The agreement provided that Craig’s wife Katherine would take care of Jeffrey three to four days a week in their family home. The visitation later included one overnight stay each week, as the child got older. Craig further alleged that he held Jeffrey out to his family and friends as his son.
On March 31, 2003, Sandy sent Craig an e-mail describing Craig’s care of Jeffrey S. as “childcare” and stating that the childcare was no longer needed.
On April 3, 2003 Craig filed a Petition for Paternity alleging that he was Jeffrey’s presumed father pursuant to Family Code Section 7611(d). The code section provides that a man is the presumed father of a minor child if he “receives the child into his home and opened holds out the child as his natural child.” Craig also filed a motion for visitation and requested a DNA test to confirm his paternity.
Prior to these matters being heard Sandy had joined her husband Brian as a party to the proceeding. Brian contended that since he was Sandy’s husband at the time of Jeffrey’s conception, he was afforded the benefit of two evidentiary presumptions that he was Jeffrey S.’s father, one of which creates a “conclusive” presumption of paternity.
Brian contended that, pursuant to Family Code Section 7540, he was conclusively presumed to be Jeffrey S.’s father. That section states, in pertinent part:
“…the child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage”.
Brian also contended that, pursuant to Family Code Section 7611(a), he was afforded an additional presumption of fatherhood of Jeffrey. Family Code Section 7611(a) states that a man is a presumed father if:
“(a) he and the child’s natural mother are or having been married to each other and the child is born during the marriage….”
The trial court found that Brian’s assertion of the Family Code Section 7611(a) presumption essentially trumped Craig L.’s presumption asserted under Family Code Section 7611(d). The trial court believed that “there is a strong public policy in California to maintain the integrity of the unitary family and the welfare of Jeffrey requires a concern for Jeffrey’s perceived legitimacy.” In determining that Craig did not have standing to assert paternity, the trial court found that it was not necessary to address Craig’s motion for temporary visitation and DNA testing.
Craig L. appealed and the Appellate Court reversed.
The Appellate Court found that Craig L.’s assertion of the presumption under Family Code Section 7611(d) was sufficient to confer on him the status of presumed father.
With regard to Brian’s assertion of the “conclusive” presumption of Family Code Section 7540, the court also found that although there mmight be a factual dispute as to whether Brian was in fact cohabiting with Sandy during the time in which Jeffrey was conceived, Family Code Section 7541 allows a “presumed father” along with the minor and the husband, to dispute parentage and/or establish paternity by filing a motion for paternity testing within two years after the minor’s birth. Thus, Craig L.’s application was deemed timely.
The court distinguished the facts in this case with the case of Dawn D. v. Superior Court (1998) 17 Cal.4th 932. In that case, a biological father had attempted to invoke the Section 7611(d) presumption, contending that the biological mother had not allowed him the opportunity to receive the child in his home and openly hold the child out as his own thereby preventing him from establishing his claim for paternity, notwithstanding his inability to hold the child out he claimed the presumption since he was prevented from doing so.
The court, in distinguishing this matter from Dawn D., found the fact pattern significantly different in this case. As the court stated on Page 15059:
“Craig’s claim is, of course, markedly different than the claim considered in Dawn D….Craig alleges facts which would give rise to the presumption provided by 7611(d). …in sum…where a couple permits such a relationship to develop they cannot unilaterally terminate it”.
The court then addressed the argument of Sandy and Brian that in light of the conclusive presumption provided by Section 5740 and the state’s conceded interest in preserving the stability of the marriages, that presumptions provided to husbands under Section 7611(a), will always outweigh than the presumption afforded men who have taken children into their homes and acknowledged them. The Appellate Court noted that such a “per se” rule, which could require termination of an existing paternal relationship in favor of preserving any marriage, without regard to the harm the child might suffer, is at direct odds with the entire statutory framework governing paternity actions.
“A rule which would not require evaluation of the nature of a man’s relationship with a child before terminating that relationship is not consistent with the well being of a child or the importance our court’s have placed on the existence of such a relationship”.
The Appellate Court recognized that the impact of the relationship between an unwed father and his child on the state’s interest in preserving marriage will vary from case to case. However, the Appellate Court noted that they could find no case that holds the state’s interest in marriage will always outweigh the interest of a man and a child with whom the man has established a paternal relationship. Indeed, the express language of Family Code Section 7612(b) requires that:
“If two or more presumptions arise under Section 7611 which conflict with each other the presumption which on the facts is founded on the weightier considerations of policy and logic controls.” [emphasis added]
The Court again noted that in Dawn D. the unwed father had not established an existing parent-child relationship and thus could not rely on a presumption of paternity.
Because the trial court did not engage in any fact finding with regards to the nature of Craig’s relationship with Jeffrey, it could not and did not properly weigh that relationship against the interest embodied in Brian’s status as a presumed father under Section 7611(a).
In weighing the conflicting interests under Section 7612(b), the trial court must, in the end, make a determination which gives the greatest weight to the minor’s well being.
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Grandparent Rights
Almost fifteen years ago, these authors examined the nascent trend of expanding visitation rights of nonparents, in their article “Stepparents, Grandparents, Lovers and Friends.” (Los Angeled County Bar Association Family Law Section News and Rreview Vol 7, No. 2) At that time, relatives and others who had some sort of relationship with a child were increasingly able to obtain court-ordered visitation with the child, over the objections of the parents.
Recently, in Troxel v. Granville (June 6, 2000) 2000 Daily Journal D.A.R. 5831, the United States Supreme Court made a rare incursion into the realm of visitation rights, a matter which the Court has traditionally left to the states. The Troxel decision, which appears to limit the availability of nonparental visitation, offers family law practitioners an analysis of the role of federal substantive due process and Constitutional rights on child custody litigation and the statutes governing such litigation.
The plurality opinion, written by Justice O’Connor and joined by Chief Justice Rehnquist, Justice Ginsburg and Justice Breyer, addresses grandparent visitation rights and the inadequacies of the Washington State statute under consideration.
Each of the other five Justices wrote a separate opinion, Justices Souter and Thomas concurring and Justices Stevens, Scalia and Kennedy dissenting. As will be discussed below, while the plurality opinion focused on the rights of parents as compared with nonparents, only Justices Stevens and Kennedy addressed the rights of the persons on whom visitation orders have perhaps the greatest impact — the children.
At the trial level, Troxel involved request of the paternal grandparents for certain specified visitation with the two children of Tommie Granville and Brad Troxel, Isabelle and Natalie. After Tommie’s relationship with Brad ended in 1991, Brad moved back home with his parents, the Troxels. Between 1991 and 1993, Brad exercised every other weekend visitation with Isabelle and Natalie, frequently at the home of his parents. In 1993 Brad committed suicide.
After the death of their son, the Troxels continued to see the grandchildren on a regular basis, after approximately six months, Granville informed them that she wished to limit their visitation to one short visit a month. Thereafter, the Troxels filed a petition to obtain visitaton rights under Washington Revised Code Section 26.10.160 (3) 1994. This statute provides:
Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may serve the best interest of the children whether or not there has been any change of circumstance.
The Troxels requested visitation every other weekend and two weeks’ vacation in the summer. Granville had offered the Troxels one day a month (not including an overnight) and specific holidays/special occasions.
After a trial, the Superior Court entered a visitation decree ordering visitation for the Troxels one weekend per month, one week during the summer, and four hours on each of the Troxels’ birthdays.
On Granville’s appeal, the Appellate Court reversed, holding that the Troxels did not have standing to seek visitation as no custody action was pending. The Troxels then petitioned the Washington Supreme Court for review.
While the Washington Supreme Court disagreed with the Appellate Court’s procedural reasoning, it affirmed the Court of Appelas’ ultimate conclusion. The state Supreme Court based its ruling on the Federal Constitution, holding that the statute unconstitutionally infringes on the fundamental right of parents to rear their children. In that Court’s view, the state’s grandparent visitation statute had two fatal defects. First, the Constitution permits a state to interfere with the right of parents to rear their children only to prevent harm or potential harm to a child; this statute requires no threshhold showing of harm. Second, the statute sweeps to broadly, in that it allows “any person” to petition for forced visitation with a child at “any time” with only the requirement that such visitation be in the best interest of the child.
The Troxels appealed the matter to the United States Supreme Court, which affirmed the Washington Supreme Court in a plurality opinion written by Justice Sandra Day O’Connor.
The plurality opinion centers around two concepts which are rarely considered in the day-to-day practice of family law, at least for the California practitioner.
First, the opinion invokes the right of substantive due process, caintained within the Fourteenth Amendment’s Due Process Clause, which “provides heightened protection against government interference with certain fundamental rights and liberty interests.” 2000 Daily Journal D.A.R. at 5833.
The liberty interest at issue in Troxel is the interest of parents in the care, custody and control of their children. The plurality found that, as applied to Granville and her family, the Washington statute unconstitutionally infringes on that fundamental right. 2000 Daily Journal D.A.R. at 5833. Interestingly, in the very next sentence, the Court termed the statute “breathtakingly broad,” prefacing a discussion of why it upheld the State Supreme Court’s holding that the statute was facially invalid.
The Court observed that the language of the statute “effectively permits any third party seeking visitation to subject any decision by a parent concerning visitation of the parent’s children to state-court review. Once the visitation petition has been filed in court and the matter is placed before a judge, a parent’s decision that visitation would not be in the child’s best interest is accorded no deference. 2000 Daily Journal D.A.R. at 5833-34.
It was this lack of deference to the parenting decisions of a fit parent that the Supreme Court found repugnant to Constitutional principles. Nowhere, the Court noted, was there any allegation, let alone a finding, that Granville was an unfit parent. As the Court wrote, “that aspect of the case is important, for there is a presumption that fit parents act in the best interests of their children …” 2000 Daily Journal D.A.R. at 5834. The plurality opinion indicates that any state that does not give special weight to a parent’s decision and substitutes the state’s opinion as “better” than the parent’s own decision is inherently void.
The Court pointed to the presumption that fit parents act in the best interests of their children, and held, “[a]ccordingly, so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that prent’s children. 2000 Daily Journal D.A.R. at 5834.
The Court also noted that Granville had not attempted to cut off the Troxels’ contact with the children completely, yet the trial court had given not weight to Granville’s having agreed to some visitation even before the Troxels filed their petition.
In short, the Court observed, “this case involves nothing more than a simple disagreement between the Washington Superior Court and Granville concerning her children’s best interest. 2000 Daily Journal D.A.R. at 5835. Accordingly, the Court held, “the Due Process Clause does not permit a State to infringe on the funamental right of parents to make childrearing decisions simply because a state judge believes a “better” decision could be made. Neither the Washington nonparental visitation statute generally — which places no limits on either the persons who may petition for visitation or the circumstancers in which such a petition may be granted — nor the Superior Court in this specific case required anything more. Accordingly, we hold that § 26.10.160(3), as applied in this case, is unconstitutional.” 2000 Daily Journal D.A.R. at 3835.
Or, to put it another way, in a disagreement between parents and non-parents over what is in a child’s best interest, the opinion of the parents should ordinarily prevail unless the parent is unfit.
The Court specifically declined to consider whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting such visitation. The Court likewise declined to define the precise scope of parental due process rights in the visitation context. However, the plurality did comment that because the constitutionality of such statutes turns on the specific manner in which the statute is applied, it would be hestiant to hold that any specific nonparental visitation statute violates the Due Process Clause as a per se matter.
Of particular interest to the local practitioner, the Supreme Court opinion appeared to comment with approval on at least a portion of the California grandparent visitation statutes.
The relevant California statutes are found at Family Code §§ 3100-3104. Section 3100(a) provides in part that, “In the discretion of the court, reasonable visitation rights may be granted to any other person having an interest in the welfare of the child.” That statute is somewhat similar to the offending Washington State statute and might, therefore, be subject to Constitutional attack under Troxel, if improperly applied.
Similarly, an award of visitation under Family Code § 3101(a), pertaining to stepparent visitation, might also run afoul of Troxel, since that statute states, “Notwishstanding any other provision of law, the court may grant reasonable visitation to a stepparent, if visitation by the stepparent is determined to be in the best interest of the minor child.”
And Family Code § 3102, pertaining to visitation for close relatives of the deceased parent of a minor child, is also dangerously similar to the statute at issue in Troxel. That statute provides in part that such relatives “may be granted reasonable visitation with the child during the child’s minority upon a finding that the visitation would be in the best interest of the minor child. It is noteworthy that as to all relatives other than grandparents of the child, the court is required to consider the amount of prior personal contact between relative and child; such consideration is not statutorily required, however, in the case of grandparents.
Had Troxel arisen under California law, the trial court would have applied Family Code § 3102, along with Seciton 3104. The latter statute, a portion of which the Troxel Court favorably commented upon, specifically requires a court to find that “there is a preexisting relationship between the grandparent and grandchild that has engendered a bond such that visitation is in the best interest of the child.” The statute also requires the court to balance the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority.
In his dissenting opinon Justice Stevens spoke to just that need to take into consideration the rights of the child who, while not a party to the litigation, is certainly its subject. As Justice Stevens wrote:
The presumption that parental decisions generally serve the best interests of their children is sound, and clearly in the normal case the parent’s interest is paramount. But even a fit parent is capable of treating a child like a mere possession. [¶] Cases like this do not present a bipolar struggle between the parents and the State over who has final authority to determine what is in a child’s best interests. There is at a minimum a third individual, whose interests are implicated in every case to which the status applies — the child.” [2000 Daily Journal D.A.R. at 5838]
Justice Stevens places a greater emphasis on the child’s needs than is evident in the plurality opinion. As he wrote further on in his dissenting opinion:
A parent’s rights with respect to her child have thus never been regarded as absolute, but rather are limited by the existence of an actual, developed relationship with a child, and are tied to the presence or absence or some embodiment of family. [2000 Daily Journal D.A.R. at 5839]
In his dissent, Justice Kennedy also commented on the child’s rights, albeit from a slightly different perspective:
Cases are sure to arise — perhaps a substantial number of cases — in which a third party, by acting in a caregiving role over a significant period of time, has developed a relationship with a child which is not necessarily subject to absolute parental veto.
Justice Kennedy’s focus was on the rights of the child which accrue from having formed a bond with a nonparent. His discussion refers to, without specific mention, the concept of the psychological parent, a concept with a long and controversial history in California case law. See, for example, Guardianship of Phillip B. II (1983) 139 Cal.App.3d 407, which held that under its fact, an award of custody to the natural parents would be harmful in light of the psychological reltaionship between the child and the non-biological “parents.” See also In re Marriage of Halpern (1982) 133 Cal.App.3d, in which the non-biological “father,” was married to the mother and alleged he and the child had developed a parent-child relationship and therefore that he stood in loco parentis. Although the “father’s” petition was ultimately denied, Halpern contains an excellent discussion of what factors go into creation of the psychological parent relationship.
The California statutes, at Family Code § 3104, acknowledge that the rights of the third party (in this case, the grandparent) do not exist in a vacuum, but must be exmined in light of the entire family system. Not only does Section 3104(a) require consideration of the bond between grandparent and child, and require balancing the rights of the child against those of the parent, but Sections 3104(e) and (f) create a rebuttable presumption against grandparent visitation in certain cases. In particular, Section 3104(e) provides:
There is a rebuttable presumption that visitation of a grandparent is not in the best interests of the minor child if the natural or adoptive parents agree that the grandparents should not be granted visitation rights.
This same provision, almost verbatim, is also found in Family Code § 3103(d), which applies in dissolution, nullity, paternity, and other custody proceedings between parents. Thus, the California statute is in compliance with Troxel in giving significant weight to the parents’ opinion as to the appropriateness of grandparent visitation.
Indeed, California’s entire statutory scheme of awarding custody and visitation accords the parents’ opinions more weight than that of any third party. Family Code § 3041 requires that, before a court awards custody to a person or persons other than a parent without the consent of the parents, “the court shall make a finding that granting custody to a parent would be detrimental to the child and that granting custody to the nonparent is required to serve the best interests of the child.” [Emphasis added]
The California statutes also provide for significant procedural due process protections for birth parents who are not parties to the nonparental visitation proceedings.
Thus, the California statutes do not appear to be as “breathtakingly overbroad” as the Washington statute. Nevertheless, as applied in any case, even our statute may deny a parent or parents the substantive due process rights reinforced by the Troxel opinion.
In a decision which, as Justice Souter pointed out in his concurring opinion, went far beyond what was necessary to affirm the decision of the Washington Supreme Court, the United States Supreme Court has clarified that fit parents are the arbiters of what is ultimately in the best interests of their children. It is left to the parents to decide with whom, including with which close relations, the children may establish or continue a bond.
What impact this affirmation of the rights of parents to raise their children will have on nonparental visitation cases has yet to be seen, but it is likely that in months and years to come, the visitation requests of nonparents will be granted less frequently and less extensively than in the past.
To read more and to visit our web site click here. http://la-family-law.com
Recently, in Troxel v. Granville (June 6, 2000) 2000 Daily Journal D.A.R. 5831, the United States Supreme Court made a rare incursion into the realm of visitation rights, a matter which the Court has traditionally left to the states. The Troxel decision, which appears to limit the availability of nonparental visitation, offers family law practitioners an analysis of the role of federal substantive due process and Constitutional rights on child custody litigation and the statutes governing such litigation.
The plurality opinion, written by Justice O’Connor and joined by Chief Justice Rehnquist, Justice Ginsburg and Justice Breyer, addresses grandparent visitation rights and the inadequacies of the Washington State statute under consideration.
Each of the other five Justices wrote a separate opinion, Justices Souter and Thomas concurring and Justices Stevens, Scalia and Kennedy dissenting. As will be discussed below, while the plurality opinion focused on the rights of parents as compared with nonparents, only Justices Stevens and Kennedy addressed the rights of the persons on whom visitation orders have perhaps the greatest impact — the children.
At the trial level, Troxel involved request of the paternal grandparents for certain specified visitation with the two children of Tommie Granville and Brad Troxel, Isabelle and Natalie. After Tommie’s relationship with Brad ended in 1991, Brad moved back home with his parents, the Troxels. Between 1991 and 1993, Brad exercised every other weekend visitation with Isabelle and Natalie, frequently at the home of his parents. In 1993 Brad committed suicide.
After the death of their son, the Troxels continued to see the grandchildren on a regular basis, after approximately six months, Granville informed them that she wished to limit their visitation to one short visit a month. Thereafter, the Troxels filed a petition to obtain visitaton rights under Washington Revised Code Section 26.10.160 (3) 1994. This statute provides:
Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may serve the best interest of the children whether or not there has been any change of circumstance.
The Troxels requested visitation every other weekend and two weeks’ vacation in the summer. Granville had offered the Troxels one day a month (not including an overnight) and specific holidays/special occasions.
After a trial, the Superior Court entered a visitation decree ordering visitation for the Troxels one weekend per month, one week during the summer, and four hours on each of the Troxels’ birthdays.
On Granville’s appeal, the Appellate Court reversed, holding that the Troxels did not have standing to seek visitation as no custody action was pending. The Troxels then petitioned the Washington Supreme Court for review.
While the Washington Supreme Court disagreed with the Appellate Court’s procedural reasoning, it affirmed the Court of Appelas’ ultimate conclusion. The state Supreme Court based its ruling on the Federal Constitution, holding that the statute unconstitutionally infringes on the fundamental right of parents to rear their children. In that Court’s view, the state’s grandparent visitation statute had two fatal defects. First, the Constitution permits a state to interfere with the right of parents to rear their children only to prevent harm or potential harm to a child; this statute requires no threshhold showing of harm. Second, the statute sweeps to broadly, in that it allows “any person” to petition for forced visitation with a child at “any time” with only the requirement that such visitation be in the best interest of the child.
The Troxels appealed the matter to the United States Supreme Court, which affirmed the Washington Supreme Court in a plurality opinion written by Justice Sandra Day O’Connor.
The plurality opinion centers around two concepts which are rarely considered in the day-to-day practice of family law, at least for the California practitioner.
First, the opinion invokes the right of substantive due process, caintained within the Fourteenth Amendment’s Due Process Clause, which “provides heightened protection against government interference with certain fundamental rights and liberty interests.” 2000 Daily Journal D.A.R. at 5833.
The liberty interest at issue in Troxel is the interest of parents in the care, custody and control of their children. The plurality found that, as applied to Granville and her family, the Washington statute unconstitutionally infringes on that fundamental right. 2000 Daily Journal D.A.R. at 5833. Interestingly, in the very next sentence, the Court termed the statute “breathtakingly broad,” prefacing a discussion of why it upheld the State Supreme Court’s holding that the statute was facially invalid.
The Court observed that the language of the statute “effectively permits any third party seeking visitation to subject any decision by a parent concerning visitation of the parent’s children to state-court review. Once the visitation petition has been filed in court and the matter is placed before a judge, a parent’s decision that visitation would not be in the child’s best interest is accorded no deference. 2000 Daily Journal D.A.R. at 5833-34.
It was this lack of deference to the parenting decisions of a fit parent that the Supreme Court found repugnant to Constitutional principles. Nowhere, the Court noted, was there any allegation, let alone a finding, that Granville was an unfit parent. As the Court wrote, “that aspect of the case is important, for there is a presumption that fit parents act in the best interests of their children …” 2000 Daily Journal D.A.R. at 5834. The plurality opinion indicates that any state that does not give special weight to a parent’s decision and substitutes the state’s opinion as “better” than the parent’s own decision is inherently void.
The Court pointed to the presumption that fit parents act in the best interests of their children, and held, “[a]ccordingly, so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that prent’s children. 2000 Daily Journal D.A.R. at 5834.
The Court also noted that Granville had not attempted to cut off the Troxels’ contact with the children completely, yet the trial court had given not weight to Granville’s having agreed to some visitation even before the Troxels filed their petition.
In short, the Court observed, “this case involves nothing more than a simple disagreement between the Washington Superior Court and Granville concerning her children’s best interest. 2000 Daily Journal D.A.R. at 5835. Accordingly, the Court held, “the Due Process Clause does not permit a State to infringe on the funamental right of parents to make childrearing decisions simply because a state judge believes a “better” decision could be made. Neither the Washington nonparental visitation statute generally — which places no limits on either the persons who may petition for visitation or the circumstancers in which such a petition may be granted — nor the Superior Court in this specific case required anything more. Accordingly, we hold that § 26.10.160(3), as applied in this case, is unconstitutional.” 2000 Daily Journal D.A.R. at 3835.
Or, to put it another way, in a disagreement between parents and non-parents over what is in a child’s best interest, the opinion of the parents should ordinarily prevail unless the parent is unfit.
The Court specifically declined to consider whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting such visitation. The Court likewise declined to define the precise scope of parental due process rights in the visitation context. However, the plurality did comment that because the constitutionality of such statutes turns on the specific manner in which the statute is applied, it would be hestiant to hold that any specific nonparental visitation statute violates the Due Process Clause as a per se matter.
Of particular interest to the local practitioner, the Supreme Court opinion appeared to comment with approval on at least a portion of the California grandparent visitation statutes.
The relevant California statutes are found at Family Code §§ 3100-3104. Section 3100(a) provides in part that, “In the discretion of the court, reasonable visitation rights may be granted to any other person having an interest in the welfare of the child.” That statute is somewhat similar to the offending Washington State statute and might, therefore, be subject to Constitutional attack under Troxel, if improperly applied.
Similarly, an award of visitation under Family Code § 3101(a), pertaining to stepparent visitation, might also run afoul of Troxel, since that statute states, “Notwishstanding any other provision of law, the court may grant reasonable visitation to a stepparent, if visitation by the stepparent is determined to be in the best interest of the minor child.”
And Family Code § 3102, pertaining to visitation for close relatives of the deceased parent of a minor child, is also dangerously similar to the statute at issue in Troxel. That statute provides in part that such relatives “may be granted reasonable visitation with the child during the child’s minority upon a finding that the visitation would be in the best interest of the minor child. It is noteworthy that as to all relatives other than grandparents of the child, the court is required to consider the amount of prior personal contact between relative and child; such consideration is not statutorily required, however, in the case of grandparents.
Had Troxel arisen under California law, the trial court would have applied Family Code § 3102, along with Seciton 3104. The latter statute, a portion of which the Troxel Court favorably commented upon, specifically requires a court to find that “there is a preexisting relationship between the grandparent and grandchild that has engendered a bond such that visitation is in the best interest of the child.” The statute also requires the court to balance the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority.
In his dissenting opinon Justice Stevens spoke to just that need to take into consideration the rights of the child who, while not a party to the litigation, is certainly its subject. As Justice Stevens wrote:
The presumption that parental decisions generally serve the best interests of their children is sound, and clearly in the normal case the parent’s interest is paramount. But even a fit parent is capable of treating a child like a mere possession. [¶] Cases like this do not present a bipolar struggle between the parents and the State over who has final authority to determine what is in a child’s best interests. There is at a minimum a third individual, whose interests are implicated in every case to which the status applies — the child.” [2000 Daily Journal D.A.R. at 5838]
Justice Stevens places a greater emphasis on the child’s needs than is evident in the plurality opinion. As he wrote further on in his dissenting opinion:
A parent’s rights with respect to her child have thus never been regarded as absolute, but rather are limited by the existence of an actual, developed relationship with a child, and are tied to the presence or absence or some embodiment of family. [2000 Daily Journal D.A.R. at 5839]
In his dissent, Justice Kennedy also commented on the child’s rights, albeit from a slightly different perspective:
Cases are sure to arise — perhaps a substantial number of cases — in which a third party, by acting in a caregiving role over a significant period of time, has developed a relationship with a child which is not necessarily subject to absolute parental veto.
Justice Kennedy’s focus was on the rights of the child which accrue from having formed a bond with a nonparent. His discussion refers to, without specific mention, the concept of the psychological parent, a concept with a long and controversial history in California case law. See, for example, Guardianship of Phillip B. II (1983) 139 Cal.App.3d 407, which held that under its fact, an award of custody to the natural parents would be harmful in light of the psychological reltaionship between the child and the non-biological “parents.” See also In re Marriage of Halpern (1982) 133 Cal.App.3d, in which the non-biological “father,” was married to the mother and alleged he and the child had developed a parent-child relationship and therefore that he stood in loco parentis. Although the “father’s” petition was ultimately denied, Halpern contains an excellent discussion of what factors go into creation of the psychological parent relationship.
The California statutes, at Family Code § 3104, acknowledge that the rights of the third party (in this case, the grandparent) do not exist in a vacuum, but must be exmined in light of the entire family system. Not only does Section 3104(a) require consideration of the bond between grandparent and child, and require balancing the rights of the child against those of the parent, but Sections 3104(e) and (f) create a rebuttable presumption against grandparent visitation in certain cases. In particular, Section 3104(e) provides:
There is a rebuttable presumption that visitation of a grandparent is not in the best interests of the minor child if the natural or adoptive parents agree that the grandparents should not be granted visitation rights.
This same provision, almost verbatim, is also found in Family Code § 3103(d), which applies in dissolution, nullity, paternity, and other custody proceedings between parents. Thus, the California statute is in compliance with Troxel in giving significant weight to the parents’ opinion as to the appropriateness of grandparent visitation.
Indeed, California’s entire statutory scheme of awarding custody and visitation accords the parents’ opinions more weight than that of any third party. Family Code § 3041 requires that, before a court awards custody to a person or persons other than a parent without the consent of the parents, “the court shall make a finding that granting custody to a parent would be detrimental to the child and that granting custody to the nonparent is required to serve the best interests of the child.” [Emphasis added]
The California statutes also provide for significant procedural due process protections for birth parents who are not parties to the nonparental visitation proceedings.
Thus, the California statutes do not appear to be as “breathtakingly overbroad” as the Washington statute. Nevertheless, as applied in any case, even our statute may deny a parent or parents the substantive due process rights reinforced by the Troxel opinion.
In a decision which, as Justice Souter pointed out in his concurring opinion, went far beyond what was necessary to affirm the decision of the Washington Supreme Court, the United States Supreme Court has clarified that fit parents are the arbiters of what is ultimately in the best interests of their children. It is left to the parents to decide with whom, including with which close relations, the children may establish or continue a bond.
What impact this affirmation of the rights of parents to raise their children will have on nonparental visitation cases has yet to be seen, but it is likely that in months and years to come, the visitation requests of nonparents will be granted less frequently and less extensively than in the past.
To read more and to visit our web site click here. http://la-family-law.com
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