Sei sulla pagina 1di 35

Case Name IRMO Carney (1979) 24 Cal.

3d 725

Section Child Custody: Best Interests of the Child Analysis

Ruling/Stands For? In dissolution of marriage proceedings, the trial court ordered a change of custody of the children of the marriage, two young boys, from the father to the mother, who had relinquished custody by written agreement when the couple separated almost five years before. The mother lived in New York and had not seen the children since the separation until a few days before the hearing. The father was a quadriplegic as the result of a jeep accident that happened while he was serving in the military reserve. The trial court awarded custody to the mother on the ground of the father's disability, which it stated would prevent a normal relationship between the father and the boys. The Supreme Court reversed the portion of the interlocutory decree of dissolution transferring custody of the minor children to the mother. The court held that on a realistic appraisal of the present-day capabilities of the physically handicapped, an accommodation can be made between the policies requiring that a custody award serve the best interests of the child, and the moral and legal obligation of society to respect the civil rights of physically handicapped members, including their right not to be deprived of their children because of their disability. The court held that if a person has a physical handicap it is impermissible for the trial court simply to rely on that condition as prima facie evidence of the person's unfitness as a parent or of probable detriment to the child; rather, in all cases the trial court must view the handicapped person as an individual and the family as a whole. Thus, the court held the trial court should inquire into the person's actual and potential physical capabilities, learn how he or she has adapted to the disability and manage its problems, consider how the other members of the household have adjusted thereto, and take into account the special contribution the person may make to the family despite, or even because of, the handicap. Because the trial court failed to determine whether the father's condition would in fact have a substantial and lasting adverse affect on the best interests of the child, the court held the order changing custody on the ground the father's handicap was an abuse of discretion. In proceedings in which the mother and father of a two-and-one-half-year- old child, who had lived with its mother since birth, both sought exclusive custody, the trial court, applying the best interest of the child test, awarded custody to the father, who thereafter took custody of the child. The Supreme Court reversed. The court first held that the trial court properly decided the custody issue on the basis of the best interest of the child without requiring the father to prove in addition that changed circumstances rendered it essential that he receive custody, explaining that the changed-circumstance rule was inapplicable in the absence of a prior judicial determination of custody. The court further held, however, that the trial court abused its discretion in awarding custody to the father based on the father's better economic position and the fact that the mother worked and had to place the child in day care, while the father's new wife could take care of the child in their home. Stating that the essence of the trial court's decision was that care by a mother who, because of work and study, must entrust the child to day centers and babysitters, is per se inferior to care by a father who also works, but can leave the child with a stepmother at home, the court held that reasoning was not a suitable basis for a custody order, noting that the mother had been the primary caretaker for the child from birth to the date of the hearing, that no serious deficiency in her care had been proven, and that the child had become a happy, healthy, well- adjusted boy. The trial court entered an order modifying a custody order as to two children of a dissolved marriage. The dissolution proceeding had occurred while the mother resided in a drug and alcohol rehabilitation program. At that time, the trial court had awarded joint legal custody to both parents, with an award of primary physical custody to the father. However, in response to the mother's subsequent modification motion and her demonstration of a stable period of recovery, the trial court awarded the mother primary physical custody, finding that it was in the

Burchard v. Garay (1986) 42 Cal.3d 531

Child Custody: Best Interests of the Child Analysis

IRMO Loyd (2003) 106 Cal.App.4th 754

Child Custody: Best Interests of the Child Analysis

Camacho v. Camacho (1985) 173 Cal.App.3d 214

Child Custody: Visitation & Related issues

Troxel v. Granville (2000) 530 U.S. 57

Child Custody: Visitation & Related issues

children's best interests because the mother did not work and could care for them at home, while the father, who worked full time, had to send them to day care. (Superior Court of Kern County, No. 574674, H. A. Staley, Judge.) The Court of Appeal reversed the trial court's order modifying custody and remanded for a new hearing. The court held that the trial court abused its discretion in basing its custody determination on an improper consideration-the father's reliance on day care. A child custody determination may not be based on an assumption, unsupported by scientific evidence, that a working parent cannot provide satisfactory care, especially when that parent has been the children's primary caregiver. Further, in this case, no specific evidence was presented at the hearing to demonstrate that the father's work schedule had any negative effect on the best interests of the children. A father brought an action to establish paternity and to determine visitation after his ex-wife, planning to remarry, informed him that she would no longer permit him to visit their son. In response, the mother filed an order to show cause regarding child support and requested that the father not be permitted visitation rights, or, alternatively, that any visitation be gradual, monitored, and contingent on the father's undergoing counseling along with her and the child. The trial court found paternity, but, relying on testimony of the mother's expert witness, which was based solely on interviews he had with the child, conditioned the father's right of visitation on both his making timely payments of child support and undergoing regular counseling from a psychotherapist. (Superior Court of Los Angeles County, No. CF 00084B, Virginia L. Chernack, Temporary Judge.*) The father appealed, and the Court of Appeal reversed. The court held that, inasmuch as preservation of parental relationships is in the best interests of the child as well as the parent, and that child support and visitation rights are independent of one another, the trial court erred in conditioning visitation on payment of child support. The court further held that the trial court violated the father's due process rights by ordering him to undergo psychotherapy on the basis only of the mother's expert's interviews with the child and not based on any psychological or psychiatric evaluation of the father himself. Paternal grandparents petitioned for visitation with children born out-of-wedlock. The Superior Court, Skagit County, Michael Rickert, J., awarded visitation, and mother appealed. The Court of Appeals, 87 Wash.App. 131, 940 P.2d 698, reversed, and grandparents appealed. The Washington Supreme Court, Madsen, J., affirmed. Certiorari was granted. The Supreme Court, Justice O'Connor, held that Washington statute providing that any person may petition court for visitation at any time, and that court may order visitation rights for any person when visitation may serve best interest of child, violated substantive due process rights of mother, as applied to permit paternal grandparents, following death of children's father, to obtain increased court-ordered visitation, in excess of what mother had thought appropriate, based solely on state trial judge's disagreement with mother as to whether children would benefit from such increased visitation. Affirmed. Background: Mother appealed an order of the Superior Court granting and extending visitation to child's paternal grandparents. The Court of Appeal reversed. Holdings: The Supreme Court granted review and held that: 1. Grandparent visitation statute did not on its face violate federal constitution; 2. Statute did not violate federal constitution as applied to mother who was not child's sole surviving fit parent; 3. No judicial precedent holds that an order for grandparent visitation that is supported by one of the parents infringes upon the parental rights of the other parent; 4. Statute did not violate guarantee of the right of privacy in the California

IRMO Harris (2004) 34 Cal.4th 210

Child Custody: Visitation & Related issues

IRMO Williams (2001) 88 Cal.App.4th 808

Child Custody: Visitation & Related issues

Constitution; and 5. Trial court was required to apply rebuttable presumption that grandparent visitation was not in the child's best interest. Affirmed and remanded with directions. Following dissolution of a marriage that had produced four children, the parents shared custody, with the children spending alternate weeks with each parent. After the mother remarried and moved to Utah with her new husband, the family law court found that either of the parents would be an appropriate custodial parent and ordered that two of the children move to Utah, while the other two remain with the father in California. The Court of Appeal reversed and remanded, holding that the family law court abused its discretion in separating the siblings, since the record did not show compelling circumstances warranting that separation. The separation of siblings is disfavored and should be done only under the most compelling circumstances. An order of dissolution of marriage provided for shared joint legal custody by both parents of their two children, with sole physical custody in the mother and a visitation schedule for the father, pursuant to a mediated temporary agreement. When the mother announced her intention to move with the children to a new city 40 miles from their current home, where she had a new job, the father sought permanent physical custody of the children. The trial court ruled that it was in the best interest of the children that they be permitted to move with the mother and that the father be afforded liberal reasonable visitation, and entered judgment for the mother accordingly. The Court of Appeal, Fifth Dist., Nos. F020504 and F021744, reversed, concluding that the mother had not shown that the move was reasonably necessary. The Supreme Court reversed the judgment of the Court of Appeal. The court held that the trial court did not err in concluding that it was in the best interest of the children that they move with their mother. First, and most important, although the children saw their father regularly, their mother was, by parental stipulation and as a factual matter, their primary caretaker. Furthermore, from the outset, the mother had expressed her intention to relocate for employment-related reasons; the mother evinced no intention to frustrate the father's contact with the children. Moreover, despite the fact that the move was for the mother's convenience, her proximity to her place of employment and to the children during the workday would clearly benefit the children as well. In addition, the father would be able to visit the children regularly and often. The court further clarified that a parent seeking to relocate with minor children bears no burden of establishing that the move is necessary either in the initial judicial custody determination, or in a proceeding for modification of a permanent custody order based on changed circumstances. A trial court adequately satisfies the policy under Fam. Code, 30 20, in favor of frequent and continuing contact by ordering liberal visitation with the noncustodial parent if the custodial parent relocates. Background: Mother with primary physical custody of two children filed motion to modify visitation order to permit her to relocate with children to Ohio. The Superior Court ordered that father would gain physical custody of children at least during school year if mother relocated. Mother appealed. The Court of Appeal reversed and remanded, and the Supreme Court granted review. Holdings: The Supreme Court held that: 1. Trial court's order was not abuse of discretion, and 2. Father did not have burden of establishing that change of custody was essential to prevent detriment to children from planned move. Judgment of Court of Appeal reversed and matter remanded with directions. Background: After mother who had sole legal and physical custody of the child filed

Burgess (1996) 13 Cal.4th 25

Child Custody: Move Away issues

IRMO LaMusga (2004) 32 Cal.4th 1072

Child Custody: Move Away issues

IRMO Brown &

Child Custody: Move

Yana (2006) 37 Cal.4th 947

Away issues

a move-away motion, noncustodial father filed an order to show cause to restrain any change of residence for the child, and to request a psychological evaluation and an evidentiary hearing on the move-away issue. The Superior Court denied father's request for relief, but modified the visitation schedule. Father appealed. The Court of Appeal reversed. Holdings: The Supreme Court held that: 1. Noncustodial parent opposing relocation is not barred from seeking and obtaining modification of custody order upon showing of changed circumstances, even when parent who desires to relocate with child has been awarded sole physical and legal custody in final order; 2. In such circumstances, trial court has discretion to deny modification request without holding evidentiary hearing if noncustodial parent fails to make legally sufficient showing of detriment; and 3. Father failed to make showing of detriment which was sufficient to warrant evidentiary hearing on modification request. Judgment of Court of Appeal reversed. The juvenile court initially found a prima facie showing was made that a minor, who was visiting her mother in California, had been sexually abused by her father, who had primary custody of the minor pursuant to an Arkansas child custody order, and assumed emergency jurisdiction over the minor under the Uniform Child Custody Jurisdiction and Enforcement Act (Fam. Code, 3400 et seq.). In a jurisdictional hearing, the juvenile court found true the allegation that the minor had been sexually abused (Welf. & Inst. Code, 300, subd. (d)), placed her with her mother, terminated its jurisdiction, and sent her entire case file to the Arkansas court. The Court of Appeal reversed the juvenile court's true finding under Welf. & Inst. Code, 300, subd. (d), and affirmed the juvenile court's order placing the minor with her mother and terminating jurisdiction. The court held that the juvenile court's true finding was not authorized by the act, since that finding had permanent rather than temporary ramifications with regard to custody, and the act does not confer the authority to make a permanent custody disposition (Fam. Code, 3424). The court further held that the juvenile court's true finding was sufficient to invoke emergency jurisdiction under the act, but that the custody order should have been limited to a duration determined after consultation with the Arkansas court. The court also held that the juvenile court properly terminated its jurisdiction, since there was no continuing emergency and the Arkansas court was willing and able to address the custody issue, recognizing the California custody order. Synopsis Background: Agency filed dependency petition upon release from hospital of Mexican child whose parents had requested transfer to California hospital for child to receive treatment for serious medical conditions which she could not have received in Mexico. The Superior Court, San Diego County, Peter Riddle, J., declared child dependent based on her parents' inability to provide necessary medical treatment, removed her from her parents' custody and placed her in foster care, and granted de facto parent status to foster parents. Mother and father appealed. Holding: The Court of Appeal, McDonald, J., held that state juvenile court did not have subject matter jurisdiction over dependency proceeding under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Reversed. Background: County department of children and family services filed dependency petition for newborn child whose whereabouts were unknown, based on risk of harm posed by physical abuse previously suffered by child's two siblings, including one who had died. The Superior Court, Los Angeles County, No. CK46426, Stanley Genser, Commissioner, declared child dependent, issued protective custody

In re: C.T. (2002) 100 Cal.App.4th 101

UCCJEA: Interstate issues

In re: A.C. (2005) 130 Cal.App.4th 854

UCCJEA: Interstate issues

In re: Baby M. (2006) 141 Cal.App.4th 588

UCCJEA: Interstate issues

warrant, and held jurisdictional and dispositional hearings without having located child, who had allegedly been taken to another state by his biological father. Mother appealed. Holdings: The Court of Appeal, Perluss, P.J., held that: 1. Disentitlement doctrine did not apply to justify dismissal of mother's appeal; 2. Juvenile court lacked jurisdiction under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) to make jurisdictional and dispositional orders for child; and 3. There was no benefit to be derived from conducting jurisdictional and dispositional hearings prior to locating child. Reversed and remanded. Father appealed from an order of the United States District Court for the Central District of California, Richard A. Paez, J., which denied his petition seeking to have his three younger children returned to Israel pursuant to Hague Convention on the Civil Aspects of International Child Abduction. The Court of Appeals, Kozinski, Circuit Judge, held that: (1) court's determination of habitual residence of parties' children was erroneously based upon an understanding of that term that gave insufficient weight to importance of shared parental intent under the Convention, and (2) question court needed to answer was not simply whether the children had in some sense become settled in United States, but rather, whether United States had supplanted Israel as the locus of children's family and social development at time that mother petitioned for their custody. Reversed and remanded. Father, who resided in Mexico, petitioned for order compelling mother to return their children to Mexico pursuant to International Child Abduction Remedies Act (ICARA), which implemented Hague Convention on the Civil Aspects of International Child Abduction. After mother removed action, the United States District Court for the Southern District of California, M. James Lorenz, J., ordered that children be returned to Mexico. Parties cross-appealed. The Court of Appeals, Reinhardt, Circuit Judge, held, as matters of first impression, that: (1) for purposes of Convention, ne exeat clause in foreign divorce agreement does not confer rights of custody upon a parent who otherwise possesses only access rights to parties' children, and (2) for purposes of Convention, patria potestas does not confer rights of custody upon a parent given access rights in a custody agreement. Reversed with directions. Background: Father who resided at military base in Germany petitioned, under Hague Convention on Civil Aspects of International Child Abduction, for return of his two minor children from mother, who lived with them in United States. The United States District Court for the Western District of Washington, John C. Coughenour, Chief Judge, stayed action pending resolution of state-court divorce proceedings. The Court of Appeals vacated and remanded, 305 F.3d 854. On remand, the District Court denied petition, and father appealed. Holdings: The Court of Appeals held that: 1. No settled intention existed on parents' part to abandon United States residence for children at time of family's relocation to Germany, and 2. Children's eight-month stay in Germany before mother returned with them to U.S. was insufficient to overcome parents' lack of shared settled intent to abandon U.S. residence. 3. Affirmed. In adjudicating a former husband's motion to reduce his child support payments, the trial court considered the income of his former wife's new husband in adjusting the payments.

Mozez v. Mozez (9th Cir. 2001) 239 F.3d 1067

Hague Convention: International Issues

Gonzalez v. Gutierrez (9th Cir. 2002) 311 F.3d 942

Hague Convention: International Issues

Holder v. Holder (9th Cir. 2004) 392 F.3d 1009

Hague Convention: International Issues

IRMO Wood (1995) 37 Cal.App.4th 1059

Child Support: Determining Income

IRMO de Guigne (2002) 97 Cal.App.4th 1353

Child Support: Determining Income

IRMO Schlafly (2007) 149 Cal.App.4th 747

Child Support: Determining Income

The Court of Appeal reversed the trial court's order setting child support after the trial court had taken into account the income of the former wife's new husband, and remanded, directing that the trial court should insert the former husband's income, attribute earning capacity to the former wife, and arrive at a guideline figure, without considering the income of the parties' current spouses unless a supported child would suffer extreme hardship under the guideline amount. The court held that the trial court erred in considering the income of the former wife's new husband in light of the recently enacted Fam. Code, 4057.5 (income of subsequent spouse shall not be considered). Although the court claimed that it only considered the new husband's income as it related to the wife's standard of living, this was tantamount to considering new spouse income. The only exception to the Fam. Code, 4057.5, prohibition against looking to a new spouse's income is extreme and severe hardship to a child. Under Fam. Code, 4057, subd. (b)(5), an exception in which the court has discretion not to use the statutory formula for child support, arises when application of the formula would be unjust or inappropriate due to special circumstances. Ordinarily under this exception, a trial court could make any equitable adjustment to the amount of child support, within reason. In this case, however, the court made an adjustment that the Legislature had specifically forbidden it to make, since Fam. Code, 4057.5, subd. (a)(2), states that income of the obligee parent's subsequent spouse shall not be considered. The court further held, however, that the trial court did not err in applying the old law permitting consideration of the income of the new husband (Civ. Code, former 4721, subd. (e)) to the period of time before January 1, 1994, which was the date when Fam. Code, 4057.5, became effective. In dissolution of marriage proceedings, the trial court entered an order setting child and spousal support in amounts that exceeded the husband's total monthly income. The husband was born into wealth and social prominence and had never worked during the marriage, financing the family's lavish lifestyle through investment income ($240,000 per year) and the liquidation of family assets. Annual household expenses averaged $450,000. The trial court ordered the husband to pay $15,000 per month in child support and $12,500 per month in spousal support. The guideline (Fam. Code, 4050 et seq.) amount for child support based on the husband's income was $4,844. (Superior Court of San Mateo County, No. F046396, Donald B. King, Temporary Judge. ) The Court of Appeal modified the judgment as to tuition payments and otherwise affirmed. The court held that the trial court did not abuse its discretion in setting child and spousal support in amounts that exceeded the husband's total monthly income. Substantial evidence supported the conclusion that the husband's extensive property holdings and relatively meager investment income were special circumstances (Fam. Code, 4057) permitting an upward deviation from codified support guidelines. Throughout the marriage, the husband had chosen to live on money beyond that generated by investments. Thus, it was inappropriate that his support obligation be based on that investment income alone, compelling the children to live in rental housing while he lived in his ancestral mansion and sheltered and benefited from substantial assets that produced no income. Under these circumstances there was nothing improper in requiring support payments from the husband's separate property, particularly since the marriage produced no community property. Fam. Code, 4053, gives a court great latitude in applying its principles to individual cases. Background: Former husband moved for modification of child support and attorney fee orders. Deeming motion as one for reconsideration, the Superior Court denied motion. Husband appealed. Holdings: The Court of Appeal held that: 1. Imputation of 3 percent rate of return on father's stock portfolio was not abuse of discretion; 2. Rental value of father's mortgage-free home was not includable in his

3.

nontaxable income; and $500 add-on for children's activities was not abuse of discretion.

Asfaw v. Woldberhan (2007) 147 Cal.App.4th 1407

Child Support: Determining Income

Affirmed in part, reversed in part, and remanded with directions. Background: In a dissolution proceeding, the Superior Court, Los Angeles County, No. BD301937, Richard E. Denner, J., declared the marriage a nullity, awarded parents joint legal and physical custody of the children with mother's home being their primary residence, and computed father's child support obligation. Mother appealed. Holding: The Court of Appeal, Rubin, J., held that, as an issue of first impression, depreciation of father's rental properties was not properly deductible from his annual gross income and annual net disposable income for purposes of calculating child support. Affirmed in part, reversed in part, and remanded. In dissolution proceedings, the trial court awarded the wife spousal and child support, and attorney fees. The husband moved for reduction or termination of the support obligations. The judge who was scheduled to hear the motion noted that the trial judge had expressed an interest in retaining jurisdiction, and ordered the parties to first appear before the trial judge to determine if he had intended to retain personal jurisdiction over all future proceedings. The trial judge declared that he had so intended, and over the husband's objection to his jurisdiction, denied the modifications sought by the husband. (Superior Court of San Diego County, No. DN37620, Franklin J. Mitchell, Jr., Judge.) The Court of Appeal affirmed. The court held that, under the Agnos Child Support Standards Act of 1984 (Civ. Code, 4720 et seq.) and prior decisional law, the capacity to earn standard is appropriately applied where, as here, the payor spouse has the ability and opportunity to work, but demonstrates a lack of willingness to do so. The court held that the evidence, particularly the husband's failure to make support payments before he quit his job as a senior cost accountant and began an extended period of unemployment, supported the trial court's application of the capacity to earn standard in setting and refusing to modify the husband's support obligations, and also supported the award of attorney fees. Further, the court held that although the trial judge had no authority to retain personal jurisdiction over postdissolution proceedings he did have jurisdiction to hear the husband's motion for modification once it came before him. (Opinion by Work, J., with Kremer, P. J., and Froehlich, J., concurring.) In a dissolution proceeding, the trial court concluded that it should assess spousal and child support based upon the husband's earning capacity, rather than his actual earnings at time of trial. Shortly after ordering temporary support, the husband shifted his work to lesser-compensated employment, and reduced his work to a normal eight-hour day. The court found that the husband, who had maintained a rigorous work regimen during the marriage, working an abnormally high number of hours, had voluntarily and unjustifiably reduced his hours of work and his income. The Court of Appeal, Second Dist., Div. Seven, No. B048099, affirmed. The Supreme Court reversed the judgment of the Court of Appeal and directed that the matter be remanded to the trial court for further proceedings. The court held that the trial court did not abuse its discretion in considering the earning capacity of the husband, since a trial court may consider the earning capacity of a supporting spouse in any manner, as well as his or her actual income, in fixing support. Moreover, substantial evidence supported the trial court's finding that the husband's shift to lesser-compensated work was motivated by his desire to shirk family obligations. However, the court held that the trial court abused its discretion by determining the husband's earning capacity without explicitly basing the

IRMO Regnery (1989) 214 Cal.App.3d 1367

Child Support: Imputing Income / Contempt

IRMO Simpson (1992) 4 Cal.4th 225

Child Support: Imputing Income / Contempt

IRMO LaBass & Munsee (1997) 56 Cal.App.4th 1331

Child Support: Imputing Income / Contempt

determination on the income the husband could earn without substantial continuous overtime. The court held that a determination of a supporting spouse's earning capacity should not be based upon an extraordinary work regimen, but instead upon an objectively reasonable work regimen as it would exist at the time the determination of support is made. In postdissolution proceedings, the trial court granted the husband's petition to modify his child support obligation by imputing to the wife the starting salary of a full-time school teacher rather than her actual earnings as part-time lecturer at a community college. The wife was eligible for a full-time position, but she chose to limit her employment. The Court of Appeal affirmed. It held that the trial court was justified in imputing to the wife the salary of a full-time teacher. The evidence showed that the wife had a bachelor's degree plus 70 units and an emergency teaching credential allowing her to substitute teach anywhere in her local school district, and that there were numerous job opportunities for full-time teachers in that school district. Also, she made no secret of her intent to avoid working full-time. Thus, substantial evidence supported the court's implied finding that the wife had both the ability and the opportunity to work full-time but was unwilling to do so. This was the only showing required of the husband; he was not required to show that the wife would have secured full-time employment. The trial court entered a judgment ordering an ex-husband to pay child support to his ex-wife for their son. In determining the father's income for child support purposes, the court imputed rental income based on the fair market rental value of the father's rental properties and his equity in those properties. The Court of Appeal affirmed. The court held that the trial court did not err in imputing rental income based on the fair market rental value of the properties and the father's equity in those properties in calculating his income. Fam. Code, 4058, allows the court to consider a parent's earning capacity in lieu of the parent's income. In the context of child support, a broader definition of earning capacity to include income that could be derived from income-producing assets as well as from work is in accord with the legislative intent. In calculating child support, the state's top priority is the interests of the children. Supporting a child according to the parent's circumstances and station in life is a parent's first and principal obligation. Child support orders must ensure that children receive sufficient support. Just as a parent cannot shirk his or her parental obligations by reducing his or her earning capacity through unemployment or underemployment, the parent cannot shirk the obligation to support his or her child by underutilizing income-producing assets. Background: Father who was subject to child support order sought modification based on alleged change of circumstances owing to his having been terminated from his employment for misconduct. The Superior Court, Orange County, Gale Hickman, Temporary J., imputed income to father based on earning capacity as demonstrated by former employment and denied father's request for modification. Father appealed. Holding: The Court of Appeal, Rylaarsdam, Acting P.J., held, as matter of first impression, that imputation of income was improper without first providing father with opportunity to present proof on his ability or opportunity to work. Reversed and remanded. The trial court imposed contempt sanctions on a parent for violation of a judicial child support order, finding that he had the ability to pay the court-ordered support. The Court of Appeal, Fourth Dist., Div. Two, No. E017504, annulled the judgment of contempt in reliance on an earlier California Supreme Court decision. The Supreme Court affirmed the judgment of the Court of Appeal. The court held

IRMO Dacumos (1999) 76 Cal.App.4th 150

Child Support: Imputing Income / Contempt

IRMO Eggers (2005) 131 Cal.App.4th 695

Child Support: Imputing Income / Contempt

Moss v. Superior Court (1998) 17 Cal.4th 396

Child Support: Imputing Income / Contempt

IRMO Ostler & Smith (1990) 223 Cal.App.3d 33

Spousal Support: Determining, waiver

that the constitutional proscription against involuntary servitude (U.S. Const., 13th Amend.; Cal. Const., art. I, 6) did not preclude imposition of contempt sanctions on the parent, when his financial inability to comply with the child support order was the result of a willful failure to seek and accept available employment that was commensurate with his skills and ability. A court order that a parent support a child, compliance with which may require that the parent seek and accept employment, does not bind the parent to any particular employer or form of employment or otherwise affect the freedom of the parent. The court also held that the constitutional proscription against imprisonment for debt (Cal. Const., art. I, 10) did not preclude imposition of contempt sanctions on the parent. The constitutional provision does not apply to imprisonment for crime, and although it no longer includes an express fraud exception to its prohibition of imprisonment for debt, the fraud exception is still recognized. The parent's conduct fell within the fraud exception. The court further held that imposition of contempt sanctions was permitted by statute (Code Civ. Proc., 1209 et seq.; Pen. Code, 166, subd. (a)(4); Fam. Code, 4058, subd. (b), 4505, 3558). The court also held that in imposing such contempt sanctions, the ability to comply with the support order is not an element of the contempt that has to be proven beyond a reasonable doubt by the petitioner. Rather, the inability to comply is an affirmative defense that must be proven by a preponderance of the evidence by the alleged contemner. The court finally held that although there was no constitutional impediment to the trial court's imposition of contempt sanctions, the Court of Appeal's conclusion that such contempt sanctions were beyond the power of the court had to be affirmed, since the Court of Appeal's decision was based on then applicable precedent. Retroactive application of a decision disapproving prior authority on which a person may reasonably rely in determining what conduct will subject the person to penalties denies due process. In a bifurcated marital dissolution proceeding, the amount of spousal support and child support was contested. The husband had acquired his education during the early years of the marriage. During the marriage, the wife devoted her time mainly to domestic duties and raising the children. Over the course of the marriage, the husband's income increased substantially. For several years prior to the parties' separation, the husband's annual income as a general auditor of a major bank was supplemented with large annual bonuses attributable to work performed in the prior year. The husband appealed the trial court's spousal and child support awards, claiming that an escalation provision, based on a percentage of his future annual bonuses over and above the fixed monthly support amounts was error as a matter of law and an abuse of the trial court's discretion. (Superior Court of Marin County, No. 127715, Richard H. Breiner, Judge.) The Court of Appeal affirmed. It held that the order for additional support based on the future bonuses was within the trial court's discretion under Civ. Code, 4700 (child support), and Civ. Code, 4801 (spousal support). (Opinion by Barry-Deal, J.,* with White, P. J., and Strankman, J., concurring.) In proceedings to modify or terminate a spousal support order on the husband's retirement, the trial court entered an order requiring the 68-year-old husband to pay $3,500 per month in support. The Court of Appeal reversed and remanded for further proceedings. The court held that the trial court abused its discretion because it did not base the spousal support order on an examination of the material change in circumstances caused by the husband's timely retirement. Instead, the trial court refused to recognize the effect of the husband's retirement and incorrectly applied a capacity to earn standard. There was no evidence that the husband had any actual ability to work or that he refused any real jobs. Furthermore, no one can be compelled to work after the usual retirement age of 65 in order to pay the same level of spousal support that he or she was paying while employed. Because the amount of the spousal support order exceeded the husband's net income from any source, if the husband complied with

IRMO Reynolds (1998) 63 Cal.App.4th 1373

Spousal Support: Determining, waiver

IRMO Shaughnessy (2006) 139 Cal.App.4th 1225

Spousal Support: Determining, waiver

the order, he would improperly be required to invade or exhaust his retirement assets in order to pay support. Only investment income, not investment principal, should be available to pay spousal support, especially where, as here, the subject retirement assets represented the husband's residual share of the community property awarded to him as part of the dissolution. Background: Former husband sought downward modification or termination of his spousal support obligation, based on asserted change in circumstances. The Superior Court, San Diego County, No. D460893, Thomas C. Hendrix, J., ordered downward modification of support, with termination of support obligation to follow in six months, unless former wife demonstrated compelling reason for extension. Former wife appealed. Holdings: The Court of Appeal, Aaron, J., held that: 1. Changed circumstances justified decrease in spousal support; 2. As matter of first impression, monetary gifts to obligee spouse may be considered in determining appropriate spousal support award; 3. Finding that former wife would be sufficiently self-supporting by dates set for reduction and termination of support was not an abuse of discretion; and 4. Former wife received adequate notice of her obligation to become selfsupporting. Affirmed. In a dissolution of marriage action, the trial court ruled that the parties' premarital agreement waiving spousal support for both parties was unenforceable as against public policy, and awarded the wife substantial spousal support. The Court of Appeal, Second Dist., Div. One, No. B113293, reversed and remanded. The Supreme Court affirmed the judgment of the Court of Appeal. The court held that the trial court erred in ruling that the parties' waiver of spousal support was unenforceable as against public policy. The common law policy, based on assumptions that dissolution of marriage is contrary to public policy and that premarital waivers of spousal support may promote dissolution, is anachronistic. When entered into voluntarily by parties who are aware of the effect of the agreement, a premarital waiver of spousal support does not offend contemporary public policy. Such agreements are, therefore, permitted under Fam. Code, 1612, subd. (a)(7), which authorizes the parties to contract in a premarital agreement regarding any matter, including their personal rights and obligations, that does not violate public policy or a statute imposing a criminal penalty. No public policy is violated by permitting enforcement of a waiver of spousal support executed by intelligent, well-educated persons, each of whom is self-sufficient in property and earning ability, and both of whom had the advice of counsel regarding their rights and obligations as marital partners at the time they executed the waiver. In a dissolution of marriage action, the trial court entered a judgment upholding the validity of a premarital agreement, finding that the wife did not meet her burden of showing that the agreement, in which the wife waived her community property rights, was involuntary (Fam. Code, 1615), even though she had not been represented by an attorney and her husband had been. (Superior Court of San Mateo County, No. F-19162, Judith W. Kozloski, Judge.) The Court of Appeal, First Dist., Div. Two, Nos. A075328 and A076586 reversed and remanded after determining that the agreement was subject to strict scrutiny because the wife had not been represented by counsel. The Supreme Court reversed the judgment of the Court of Appeal to the extent that it reversed the judgment of the trial court on the issue of the voluntariness of the premarital agreement, and remanded to the Court of Appeal with directions. The court held that the Court of Appeal erred in holding that premarital agreements are

IRMO Pendleton & Fireman (2000) 24 Cal.4th 39

Spousal Support: Determining, waiver

IRMO Bonds (2000) 24 Cal.4th 1

Spousal Support: Determining, waiver

IRMO Morrison (1978) 20 Cal.3d 437

Spousal Support: Modification & Termination

subject to strict scrutiny where the less sophisticated party does not have independent counsel and has not waived counsel according to exacting waiver requirements. Such a holding is inconsistent with Fam. Code, 1615, which governs the enforceability of premarital agreements. That statute provides that a premarital agreement will be enforced unless the party resisting enforcement can demonstrate either (1) that he or she did not enter into the contract voluntarily, or (2) that the contract was unconscionable when entered into and that he or she did not have actual or constructive knowledge of the assets and obligations of the other party and did not voluntarily waive knowledge of such assets and obligations. The court also held that substantial evidence supported the trial court's finding that the wife voluntarily entered into the agreement. The court further held that considerations applicable to commercial contracts do not necessarily govern the determination whether a premarital agreement was entered into voluntarily, and that a premarital agreement is not to be interpreted and enforced under the same standards applicable to marital settlement agreements, or in pursuit of the policy favoring equal division of assets on dissolution. A husband petitioned the court for dissolution of a 28-year marriage, at which time he was 52 years old and his wife was 54. At the dissolution hearing the wife testified, and the husband agreed, that she had no job skills or training and was then employed only part time. The wife also testified to health problems which made it problematical whether she would be able to work full time. At the time of the dissolution, the husband had retired from military service and was employed in private industry. The trial court entered an interlocutory judgment of dissolution awarding the wife spousal support of $400 a month and terminating jurisdiction to award spousal support to her after 11 years. The wife was awarded an interest in her husband's military pension, but no determination was made of her interest in the husband's nonvested pension rights in connection with his present employment. The Supreme Court reversed and remanded for further proceedings. The court held the trial court abused its discretion by divesting itself of jurisdiction to award future spousal support after 11 years without any evidence in the record that the wife would be able to provide for herself at that time. After reviewing the legislative history of Civ. Code, 4801, subd. (d), providing for the absolute termination of spousal support unless the trial court in its original order retains jurisdiction to extend an order for support, the court held the statute was not intended to authorize trial courts to disregard the parties' circumstances and terminate jurisdiction either to reduce the number of future modification proceedings or to provide the parties with post-dissolution economic stability. Rather, the court held a trial court should not terminate jurisdiction to extend a future support order after a lengthy marriage, unless the record clearly indicates that the supported spouse will be able to adequately meet his or her financial needs at the time selected for termination of jurisdiction. The court also held that in attempting to fairly allocate the funds that were available, the trial court did not abuse its discretion in setting the wife's spousal support at $400 a month. However, the court held the trial court erred in failing to adjudicate the wife's interest in the nonvested pension rights of the husband. In an action by a former wife to establish a sister state divorce decree, the trial court entered an order modifying the husband's support obligation from $542 to $200 per month and providing for termination of support some three years after the time of the order unless the wife should show good cause to extend it. The husband was unemployed and his income had been reduced rom a gross of $2,297 per month to around $575 from unemployment insurance, interest, and dividends. The wife, who had been unemployed throughout the marriage of some 16 years, had earned a master's degree in education but her current income prospects appeared to be only a few thousand dollars per year. On appeal by both parties, the Court of Appeal affirmed, holding that the record did not establish an abuse of discretion with respect to the trial court's order. The court

IRMO Richmond (1980) 105 Cal.App.3d 352

Spousal Support: Modification & Termination

IRMO Vomacka (1984) 36 Cal.3d 459

Spousal Support: Modification & Termination

held that it was reasonable for the trial court to postpone a final determination on the support issue and that it could have properly concluded from the record that it was probable the wife would be supportively self-sufficient at the designated time, and reasonable that she, with better access to relevant evidence, make a contrary showing. It further held that there was no abuse of discretion with respect to the amount the husband was ordered to pay. The trial court modified the spousal support provision of a stipulated interlocutory judgment of dissolution of marriage, to extend spousal support payments past the date stipulated as the date of termination of the court's jurisdiction regarding spousal support, which was the date when the wife's right to request spousal support was to terminate. The Supreme Court affirmed. It held that where jurisdiction to award or grant requests for spousal support is reserved until a specified date the court has fundamental jurisdiction until that date to take new action concerning such support. Such new judicial action may include an extension of spousal support beyond the last date the court can act. The trial court entered an order terminating spousal support to a 57-year- old former wife based on her failure to become gainfully employed or to seek vocational training. Several years previously, the court had denied without any findings the former husband's request to reduce the spousal support and thereafter to terminate the support. In ruling on the current motion of the husband to modify and terminate spousal support, the court found that the wife's failure to become employable or to seek training after so many years had shifted the burden to her to demonstrate her continued need for support, in light of her continued inaction with regard to her self-sufficiency. The Court of Appeal reversed and directed the trial court to reinstate the spousal support provisions. It held that there was no showing of a material change of circumstances since the trial court's prior support order: the wife was unemployed at the time of the original support order and had been unemployed for many years; also, the trial court had not set forth any requirements or conditions envisoning her employment. Moreover, the court held that there had not been any material change in the husband's ability to pay the previously ordered support. It also held that the abrupt cutoff of support was not supported by reasonable inferences to be drawn from the evidence, with regard to lesser needs of the wife. The county social services agency filed a dependency petition alleging that a minor had been taken into custody because of his parents' failure to adequately supervise and protect him. A man with whom the minor had been living filed a petition to establish a parental relationship with the minor, and he obtained temporary custody. The man had lived with the minor's mother beginning when she was pregnant, and he was named as father on the birth certificate. The mother had problems of drug use, transiency, and violence, and after the relationship broke up, the man took the minor without the mother's permission. The man admitted that he was not the biological father. Nevertheless, the juvenile court determined that the man qualified as the minor's natural father under Fam. Code, 7611, subd. (d) (presumption of paternity where man receives child into home and openly holds child out as his natural child). The court ordered that the minor's placement continue in the father's home, and it ruled that both parents were entitled to family reunification services. ( The Court of Appeal reversed, determining that the presumption arising under Fam. Code, 7611, subd. (d), is necessarily rebutted when the presumed father admits he is not the biological father. The Supreme Court reversed the judgment of the Court of Appeal and remanded for further proceedings. The court held that the juvenile court did not err in finding that the presumption arising under Fam. Code, 7611, subd. (d), was not rebutted by the

IRMO Gavron (1988) 203 Cal.App.3d 705

Spousal Support: Modification & Termination

In re: Nicholas H. (2002) 28 Cal.4th 56

Paternity: Presumption Issues

Elisa B. v. Superior Court (2005) 37 Cal.4th 108

Paternity: Presumption Issues

father's admission. Fam. Code, 7612, subd. (a), provides that a presumption under Fam. Code, 7611, may be rebutted in an appropriate action only by clear and convincing evidence. The court held that the appropriate action contemplated by the Legislature is one in which another candidate is vying for parental rights and seeks to rebut the presumption in order to perfect his claim. That was not true in this case, where rebuttal of the presumption, based on the father's admission, would result in the minor being fatherless. Background: County filed action to establish that former lesbian partner was obliged to pay child support to mother, who was receiving public assistance, for children who were conceived intentionally while relationship was extant. The Superior Court, El Dorado County, No. PFS20010244, Gregory Ward Dwyer, Commissioner, ordered former partner to pay child support. Former partner petitioned for writ of mandate. The Court of Appeal issued writ. The Supreme Court granted review, superseding the opinion of the Court of Appeal. Holdings: The Supreme Court held that: 1. Under the Uniform Parentage Act (UPA), a child may have two parents, both of whom are women, and 2. Former partner was presumed parent under UPA, circumstances existed which made this an inappropriate action in which the presumption should be rebutted, and thus former partner was obliged to pay child support, disapproving Curiale v. Reagan, 222 Cal.App.3d 1597, 272 Cal.Rptr. 520, Nancy S. v. Michele G., 228 Cal.App.3d 831, 279 Cal.Rptr. 212, and West v. Superior Court, 59 Cal.App.4th 302, 69 Cal.Rptr.2d 160. Judgment of Court of Appeal reversed. An individual who believed himself to be the father of a child whose mother was married to another man brought an action against the mother and her husband, to establish his paternal relationship to the child. The mother and her husband had married only for economic advantages and had never had sexual relations, whereas plaintiff had received the child into his home, had lived with him, and had held him out as his own and supported him for nearly two and one-half years. The trial court determined that plaintiff was the presumed father of the child under Civ. Code, former 7004, subd. (a)(4) (now Fam. Code, 7611, subd. (b)(2)(d)) (man receiving child into home and openly holding out child as his natural child presumed to be natural father), ordered him to pay child support to the mother, and ordered that there be continued joint legal and physical custody. The Court of Appeal affirmed. The court held that the trial court properly refused to apply the paternity presumption of Evid. Code, former 621 (now Fam. Code, 7540, 7541) (child of wife cohabiting with husband presumed to be child of marriage), since to do so would not have furthered the presumption's underlying policies. There was neither a marital union nor a family unit to preserve, and any societal concern for the child to have a father was served by avoiding the presumption. Also, the state's interest in ensuring that the child had a source of child support was furthered by rejecting the presumption and awarding to plaintiff the responsibility he sought to assume. The court also held that it was not necessary for plaintiff to present evidence of biological paternity to take advantage of the presumed father status of Civ. Code, former 7004, subd. (a)(4) (now Fam. Code, 7611, subd. (b)(2)(d)). By its very terms, the statute creates the presumption of natural fatherhood under the circumstances that existed between plaintiff and the child. Thus, plaintiff had no burden to present evidence establishing his biological link with the child. Rather, it was the mother's burden to rebut the presumption of natural fatherhood with clear and convincing evidence (Civ. Code, former 7004, subd. (c), now Fam. Code, 7612, subd. (a)), which she failed to do. Furthermore, the court held that although the mother claimed that blood tests eliminated the probability of plaintiff's paternity, she could not raise the issue on appeal where she failed to introduce any blood test results into evidence. A child and her stepfather brought an action seeking to prove that he was the child's

Comino v. Kelley (1994) 25 Cal.App.4th 678

Paternity: Presumption Issues

Michelle W. v.

Paternity: Due Process

Ronald W. (1985) 39 Cal.3d 354

Issues

biological father. The child had been born while her mother was married to and living with the child's presumed father; however, the mother was having sexual relations with the future stepfather during the former marriage. The putative father did not claim paternity at the time of birth nor thereafter for four years while the mother and presumed father remained married and continued to live together. When the mother and presumed father divorced, the issue of paternity was not raised, the presumed father provided child support for the child and continually exercised his visitation rights with her. After the mother married the putative father, the putative father asserted his paternity and sought to establish it in the action at bar. The trial court applied the presumption of Evid. Code, 621, which provides that 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, and which may be rebutted only by blood test evidence presented within two years of the child's birth, and established that the presumed father was the father of the child. The Supreme Court affirmed, holding that, under the facts of the case, and as applied to the child and the stepfather, the statutory presumption violated neither the due process nor equal protection clauses of the California or United States Constitutions. The court balanced the interests of the stepfather and the child in establishing the stepfather as the biological father against the state's interest in familial stability and the welfare of the child, and concluded that denying the stepfather and the child the opportunity to present blood test evidence in a court of law did not violate the guaranty of due process of law. Putative natural father, whose blood tests indicated 98.07% probability of paternity and who had established parental relationship with child, filed filiation action to establish paternity and right to visitation. The Superior Court, Los Angeles County, Steven M. Lachs, J., granted summary judgment motion filed by husband, who was presumed to be father under California law because he was living with mother at time of child's birth and who desired to raise child with mother as his own. Putative natural father and child appealed. The Court of Appeal, 191 Cal.App.3d 995, 236 Cal.Rptr. 810, affirmed and remanded. Probable jurisdiction was noted. The Supreme Court, Justice Scalia, held that: (1) California statute creating presumption that child born to married woman living with her husband is child of the marriage did not violate putative natural father's procedural due process rights; (2) statute did not violate putative natural father's substantive due process rights; (3) child did not have due process right to maintain filial relationship with both putative natural father and husband; and (4) statute did not violate child's equal protection rights. Affirmed. While separated from her husband, a woman began living with another man and became pregnant the following month. Two months later she returned to her husband, and the child was born during the marriage. The other man filed a paternity action. The mother moved for judgment on the pleadings. The trial court denied that motion, and granted the alleged biological father's motion for blood testing. The Court of Appeal summarily denied the mother's petition seeking a stay of further proceedings and a writ of mandate to compel the trial court to vacate its order denying her motion for judgment on the pleadings and to enter a new order granting the motion. The Supreme Court reversed the judgment of the Court of Appeal and remanded the cause to that court with directions to issue a writ of mandate directing the superior court to vacate its order denying the mother's motion for judgment on the pleadings and to enter a new order granting the motion. The court held that the alleged biological father had no fundamental liberty interest, protected as a matter of substantive due process (U.S. Const., 14th Amend.), in establishing a parental relationship with the child defeating Fam. Code, 7611 (statutory presumption of

Michael H. v. Gerald D. (1989) 491 U.S. 110

Paternity: Due Process Issues

Dawn D. v. Superior Court (1998) 17 Cal.4th 932

Paternity: Due Process Issues

Nakamura v. Parker (2007) 156 Cal.App.4th 327

Domestic Violence & Restraining Orders

paternity favoring husband), and Fam. Code, 7630 (standing to challenge paternity). The alleged biological father never had a personal relationship with the child, only an alleged biological link with an attempt to negotiate an agreement for child support and visitation. However, a biological father's mere desire to establish a personal relationship with the child is not a constitutionally protected liberty interest. Background: After wife petitioned for dissolution, she filed an application for a temporary restraining order (TRO) under the Domestic Violence Protection Act (DVPA). The Superior Court denied application. Wife appealed. Holding: The Court of Appeal, Kline, P.J., held that summary denial without hearing of facially adequate application for TRO was an abuse of discretion. Reversed and remanded. Background: Former wife obtained domestic violence restraining order against former husband, and the Superior Court denied husband's motion for new trial. Husband appealed. Holdings: The Court of Appeal, Ikola, J., held that: 1. Substantial evidence supported finding that husband committed acts of domestic violence, and 2. Husband was not entitled to notice of rebuttable presumption against award of custody to domestic violence perpetrator. Affirmed. Background: Having been granted a temporary restraining order (TRO) under the Domestic Violence Protection Act (DVPA) against purported father of her child born out of wedlock and a temporary order placing the child in her custody, mother, in seeking to further protect her child, sought an extension of the TRO and the custody order. The Superior Court extended the TRO for one year but concluded that it lacked authority to extend child custody order. Mother filed petition for writ of mandate, which was denied. Mother appealed. Holding: The Court of Appeal held that trial court's failure to extend child custody order was an abuse of discretion. Reversed. Background: Former wife filed application for a temporary restraining against former husband after former husband access email account during child custody dispute. The Superior Court granted a temporary restraining order, but denied former wife's later Domestic Violence Prevention Act (DVPA) application to extend the order. Former wife appealed. Holdings: The Court of Appeal held that: 1. Allegations were facially sufficient for a showing of abuse within the meaning of the DVPA; 2. Court was not required to allow oral testimony by former wife's witnesses on her application; and 3. Application was entitled to calendar preference. Reversed and remanded. After an unmarried mother and father entered into several judicially confirmed stipulations for custody and visitation rights regarding their child, the trial court, on an order to show cause filed by the father to modify the last stipulation, entered an order awarding primary physical custody to the father, applying the best interest of the child standard, and not the changed circumstances standard. The Court of Appeal, Fourth Dist., Div. Two, No. E025810, reversed.

Sabbah v. Sabbah (2007) 151 Cal.App.4th 818

Domestic Violence & Restraining Orders

Gonzalez v. Munoz (2007) 156 Cal.App.4th 413

Domestic Violence & Restraining Orders

IRMO Nadkarni (2009) 173 Cal.App.4th 1483

Domestic Violence & Restraining Orders

Montenegro v. Diaz (2001) 26 Cal.4th 249

Family Court Procedure & Course Review

Reifler v. Superior Court (1974) 39 Cal.App.3d 479

Family Court Procedure & Course Review

The Supreme Court reversed the judgment of the Court of Appeal and remanded for further proceedings. The court held that the trial court properly applied the best interest of the child standard, and not the changed circumstances standard, since the prior stipulations were not final decrees to which the changed circumstances standard applies. Although the prior orders included detailed visitation schedules and did not provide for further hearings, they did not clearly state that they were final judgments as to custody. The minute orders confirming the stipulations were ambiguous as to their finality and resembled the minute orders confirming the parties' temporary stipulations. In addition, the parties' conduct following the entry of the orders strongly suggested that they did not intend for the orders to be final judgments as to custody. A stipulated custody order is a final judicial custody determination for purposes of the changed circumstance rule only if there is a clear, affirmative indication the parties intended such a result. On the basis of court policy, purportedly precluding the use of oral testimony in family law matters estimated to consume more than one day in hearing, the trial court gave counsel the option of limiting the hearing on various post-judgment proceedings in a marital dissolution case, including an order to show cause re contempt, to a one-day hearing or having the matters submitted on the moving papers with a continuance. The Court of Appeal ordered issuance of a peremptory writ of mandate, directing the trial court to hear oral testimony on the order to show cause re contempt and to exercise its discretion with respect to hearing oral testimony on the other matters. Noting that, while a trial court is empowered to exclude oral testimony, it is also vested with a discretion to receive it, the court took the view that the court policy must be regarded as a general but flexible standard reminding judges of a large court of the existence of a valuable discretion which they should exercise in the interest of uniformity of procedure, expedition of court business, and justice to the parties, but that it could not be treated as a substitute for the discretion vested by law in the individual trial judge. The court pointed out, however, that a contempt proceeding is one where oral testimony is permitted by statute and one which culminates in its own judgment, so that statutes providing for the hearing of motions on affidavits are inapplicable. Judges assigned the hearing of domestic relations law and motion calendars in busy metropolitan courts must hear and decide a staggering number of cases while conducting the calendar in such a way that the parties and their counsel have a full and fair hearing. To accomplish this nearly impossible task, trial judges must adopt processes which expedite the hearing of motions and orders to show cause in domestic relations cases, one of the most important and sensitive tasks a judge faces. (See In re Marriage of Brantner (1977) 67 Cal.App.3d 416, 422 [136 Cal.Rptr. 635].) Although trial judges, in the sound exercise of their discretion, may determine motions or orders to show cause (except for contempt) upon declarations alone and refuse to permit oral testimony pursuant to Reifler v. Superior Court (1974) 39 Cal.App.3d 479 [114 Cal.Rptr. 356], we believe a preferable procedure is that which the trial judge utilized here. Having fully reviewed the moving and responding papers prior to the hearing, Judge Edwards allowed counsel to make offers of proof of matters not in the declarations, made inquiries of the parties and counsel as necessary to gain information he needed to make his decision, and permitted counsel to argue their positions. We fully approve this procedure because it expedites the hearing of a heavy domestic relations calendar, provides for a more pleasant, less formal, nonadversary atmosphere, and sets a tone much more likely to enable future settlement of litigation. Additionally, without expending the precious time which would be consumed by a more traditional question and answer type of heated adversary hearing, it permits the trial judge, the only one in the courtroom who knows what

IRMO Stevenot (1984) 154 Cal.App.3d 1051, n. 3 (only)

Family Court Procedure & Course Review

IRMO Elkins (2007) 41 Cal.4th 1337

Family Court Procedure & Course Review

information in addition to the declarations is required to reach a decision, to quickly obtain information by inquiries to the parties and their counsel. Background: Wife initiated marital dissolution proceedings, and a local superior court rule and a trial scheduling order required that parties were required to present their case by means of written declarations. Husband represented himself, and the Superior Court found that husband's pretrial declaration failed to establish the evidentiary foundation for all but two of his exhibits. The trial court adjudicated the parties' claims substantially in the manner requested by wife. Husband filed a petition for writ of mandate or prohibition in the Court of Appeal, which summarily denied the petition. The Supreme Court granted husband's petition for review. Holding: The Supreme Court, George, C.J., held that local superior court rule and trial scheduling order that required parties to present their case by means of written declarations were inconsistent with the hearsay rule and various statutory provisions; disapproving County of Alameda v. Moore, 33 Cal.App.4th 1422, 40 Cal.Rptr.2d 18. Judgment of Court of Appeal reversed, and matter remanded.

3011

Best interest of child; considerations.

Child Custody: Best Interests of Child analysis In making a determination of the best interest of the child in a proceeding described in Section 3021, the court shall, among any other factors it finds relevant, consider all of the following: (a) The health, safety, and welfare of the child. (b) Any history of abuse by one parent or any other person seeking custody against any of the following: (1) Any child to whom he or she is related by blood or affinity or with whom he or she has had a caretaking relationship, no matter how temporary. (2) The other parent. (3) A parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship. As a prerequisite to considering allegations of abuse, the court may require substantial independent corroboration, including, but not limited to, written reports by law enforcement agencies, child protective services or other social welfare agencies, courts, medical facilities, or other public agencies or private nonprofit organizations providing services to victims of sexual assault or domestic violence. As used in this subdivision, abuse against a child means child abuse as defined in Section 11165.6 of the Penal Code and abuse against any of the other persons described in paragraph (2) or (3) means abuse as defined in Section 6203 of this code. (c) The nature and amount of contact with both parents, except as provided in Section 3046. (d) The habitual or continual illegal use of controlled substances, the habitual or continual abuse of alcohol, or the habitual or continual abuse of prescribed controlled substances by either parent. Before considering these allegations, the court may first require independent corroboration, including, but not limited to, written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical facilities, rehabilitation facilities, or other public agencies or nonprofit organizations providing drug and alcohol abuse services. As used in this subdivision, controlled substances has the same meaning as defined in the California Uniform Controlled Substances Act, Division 10 (commencing with Section 11000) of the Health and Safety Code. (e)(1) Where allegations about a parent pursuant to subdivision (b) or (d) have been brought to the attention of the court in the current proceeding, and the court makes an order for sole or joint custody to that parent, the court shall state its reasons in writing or on the

3020

Legislative findings and declarations; health, safety, and welfare of children; continuing contact with parents

record. In these circumstances, the court shall ensure that any order regarding custody or visitation is specific as to time, day, place, and manner of transfer of the child as set forth in subdivision (b) of Section 6323. (2) The provisions of this subdivision shall not apply if the parties stipulate in writing or on the record regarding custody or visitation. (a) The Legislature finds and declares that it is the public policy of this state to assure that the health, safety, and welfare of children shall be the court's primary concern in determining the best interest of children when making any orders regarding the physical or legal custody or visitation of children. The Legislature further finds and declares that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child. (b) The Legislature finds and declares that it is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except where the contact would not be in the best interest of the child, as provided in Section 3011. (c) Where the policies set forth in subdivisions (a) and (b) of this section are in conflict, any court's order regarding physical or legal custody or visitation shall be made in a manner that ensures the health, safety, and welfare of the child and the safety of all family members. (a) Custody should be granted in the following order of preference according to the best interest of the child as provided in Sections 3011 and 3020: (1) To both parents jointly pursuant to Chapter 4 (commencing with Section 3080) or to either parent. In making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent, consistent with Sections 3011 and 3020, and shall not prefer a parent as custodian because of that parent's sex. The court, in its discretion, may require the parents to submit to the court a plan for the implementation of the custody order. (2) If to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment. (3) To any other person or persons deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child. (b) The immigration status of a parent, legal guardian, or relative shall not disqualify the parent, legal guardian, or relative from receiving custody under subdivision (a). (c) This section establishes neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child. (a) If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation, the court shall consider, and give due weight to, the wishes of the child in making an order granting or modifying custody or visitation. (b) In addition to the requirements of subdivision (b) of Section 765 of the Evidence Code, the court shall control the examination of a child witness so as to protect the best interests of the child. (c) If the child is 14 years of age or older and wishes to address the court regarding custody or visitation, the child shall be permitted to do so, unless the court determines that doing so is not in the child's best interests. In that case, the court shall state its reasons for that finding on the record. (d) Nothing in this section shall be interpreted to prevent a child who is less than 14 years of age from addressing the court regarding custody or visitation, if the court determines that is appropriate pursuant to the child's best interests. (e) If the court precludes the calling of any child as a witness, the court shall provide alternative means of obtaining input from the child and other information regarding the child's preferences.

3040

Order of preference

3042

Preference of child; custody or visitation; examination of child witnesses; addressing the court; means other than direct testimony; determination of wish to express preference; rule of court

(f) To assist the court in determining whether the child wishes to express his or her preference or to provide other input regarding custody or visitation to the court, a minor's counsel, an evaluator, an investigator, or a mediator who provides recommendations to the judge pursuant to Section 3183 shall indicate to the judge that the child wishes to address the court, or the judge may make that inquiry in the absence of that request. A party or a party's attorney may also indicate to the judge that the child wishes to address the court or judge. (g) Nothing in this section shall be construed to require the child to express to the court his or her preference or to provide other input regarding custody or visitation. (h) The Judicial Council shall, no later than January 1, 2012, promulgate a rule of court establishing procedures for the examination of a child witness, and include guidelines on methods other than direct testimony for obtaining information or other input from the child regarding custody or visitation. (i) The changes made to subdivisions (a) to (g), inclusive, by the act [FN1] adding this subdivision shall become operative on January 1, 2012. There is a presumption, affecting the burden of proof, that joint custody is in the best interest of a minor child, subject to Section 3011, where the parents have agreed to joint custody or so agree in open court at a hearing for the purpose of determining the custody of the minor child. (a) In making an order pursuant to Chapter 4 (commencing with Section 3080), the court shall grant reasonable visitation rights to a parent unless it is shown that the visitation would be detrimental to the best interest of the child. 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. (b) If a protective order, as defined in Section 6218, has been directed to a parent, the court shall consider whether the best interest of the child requires that any visitation by that parent shall be limited to situations in which a third person, specified by the court, is present, or whether visitation shall be suspended or denied. The court shall include in its deliberations a consideration of the nature of the acts from which the parent was enjoined and the period of time that has elapsed since that order. A parent may submit to the court the name of a person that the parent deems suitable to be present during visitation. (c) If visitation is ordered in a case in which domestic violence is alleged and an emergency protective order, protective order, or other restraining order has been issued, the visitation order shall specify the time, day, place, and manner of transfer of the child, so as to limit the child's exposure to potential domestic conflict or violence and to ensure the safety of all family members. If a criminal protective order has been issued pursuant to Section 136.2 of the Penal Code, the visitation order shall make reference to, and acknowledge the precedence of enforcement of, any appropriate criminal protective order. (d) If the court finds a party is staying in a place designated as a shelter for victims of domestic violence or other confidential location, the court's order for time, day, place, and manner of transfer of the child for visitation shall be designed to prevent disclosure of the location of the shelter or other confidential location. (a) In any contested proceeding involving child custody or visitation rights, the court may appoint a child custody evaluator to conduct a child custody evaluation in cases where the court determines it is in the best interests of the child. The child custody evaluation shall be conducted in accordance with the standards adopted by the Judicial Council pursuant to Section 3117, and all other standards adopted by the Judicial Council regarding child custody evaluations. If directed by the court, the court-appointed child custody evaluator shall file a written confidential report on his or her evaluation. At least 10 days before any hearing regarding custody of the child, the report shall be filed with the clerk of the court in which the custody hearing will be conducted and served on the parties or their attorneys, and any other counsel appointed for the child pursuant to Section 3150. The report may be considered by the court. (b) The report shall not be made available other than as provided in subdivision (a), or as

3080

Presumption of joint custody Joint custody orders; visitation rights; domestic violence prevention orders; transfer of children; detail specific orders; confidentiality of shelter locations

3100

3111

Child custody evaluations; report; confidentiality and use; monetary sanction for unwarranted disclosure

described in Section 204 of the Welfare and Institutions Code or Section 1514.5 of the Probate Code. Any information obtained from access to a juvenile court case file, as defined in subdivision (e) of Section 827 of the Welfare and Institutions Code, is confidential and shall only be disseminated as provided by paragraph (4) of subdivision (a) of Section 827 of the Welfare and Institutions Code. (c) The report may be received in evidence on stipulation of all interested parties and is competent evidence as to all matters contained in the report. (d) If the court determines that an unwarranted disclosure of a written confidential report has been made, the court may impose a monetary sanction against the disclosing party. The sanction shall be in an amount sufficient to deter repetition of the conduct, and may include reasonable attorney's fees, costs incurred, or both, unless the court finds that the disclosing party acted with substantial justification or that other circumstances make the imposition of the sanction unjust. The court shall not impose a sanction pursuant to this subdivision that imposes an unreasonable financial burden on the party against whom the sanction is imposed. This subdivision shall become operative on January 1, 2010. (e) The Judicial Council shall, by January 1, 2010, do the following: (1) Adopt a form to be served with every child custody evaluation report that informs the report recipient of the confidentiality of the report and the potential consequences for the unwarranted disclosure of the report. (2) Adopt a rule of court to require that, when a court-ordered child custody evaluation report is served on the parties, the form specified in paragraph (1) shall be included with the report. (f) For purposes of this section, a disclosure is unwarranted if it is done either recklessly or maliciously, and is not in the best interests of the child. (a) If the court determines that it would be in the best interest of the minor child, the court may appoint private counsel to represent the interests of the child in a custody or visitation proceeding, provided that the court and counsel comply with the requirements set forth in Rules 5.240, 5.241, and 5.242 of the California Rules of Court. (b) Upon entering an appearance on behalf of a child pursuant to this chapter, counsel shall continue to represent that child unless relieved by the court upon the substitution of other counsel by the court or for cause. Child Custody: Visitation & Related issues (a) Before making an order granting custody to a person or persons other than a parent, over the objection of a parent, 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 interest of the child. Allegations that parental custody would be detrimental to the child, other than a statement of that ultimate fact, shall not appear in the pleadings. The court may, in its discretion, exclude the public from the hearing on this issue. (b) Subject to subdivision (d), a finding that parental custody would be detrimental to the child shall be supported by clear and convincing evidence. (c) As used in this section, detriment to the child includes the harm of removal from a stable placement of a child with a person who has assumed, on a day-to-day basis, the role of his or her parent, fulfilling both the child's physical needs and the child's psychological needs for care and affection, and who has assumed that role for a substantial period of time. A finding of detriment does not require any finding of unfitness of the parents. (d) Notwithstanding subdivision (b), if the court finds by a preponderance of the evidence that the person to whom custody may be given is a person described in subdivision (c), this finding shall constitute a finding that the custody is in the best interest of the child and that parental custody would be detrimental to the child absent a showing by a preponderance of the evidence to the contrary.

3150

Appointment of private counsel

3041

Custody award to nonparent; findings of court; hearing

3101

Stepparent's visitation rights

(e) Notwithstanding subdivisions (a) to (d), inclusive, if the child is an Indian child, when an allegation is made that parental custody would be detrimental to the child, before making an order granting custody to a person or persons other than a parent, over the objection of a parent, the court shall apply the evidentiary standards described in subdivisions (d), (e), and (f) of Section 1912 of the Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.) and Sections 224.6 and 361.7 of the Welfare and Institutions Code and the placement preferences and standards set out in Section 361.31 of the Welfare and Institutions Code and Section 1922 of the Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.). (a) Notwithstanding 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. (b) If a protective order, as defined in Section 6218, has been directed to a stepparent to whom visitation may be granted pursuant to this section, the court shall consider whether the best interest of the child requires that any visitation by the stepparent be denied. (c) Visitation rights may not be ordered under this section that would conflict with a right of custody or visitation of a birth parent who is not a party to the proceeding. (d) As used in this section: (1) Birth parent means birth parent as defined in Section 8512. (2) Stepparent means a person who is a party to the marriage that is the subject of the proceeding, with respect to a minor child of the other party to the marriage. (a) Notwithstanding any other provision of law, in a proceeding described in Section 3021, the court may grant reasonable visitation to a grandparent of a minor child of a party to the proceeding if the court determines that visitation by the grandparent is in the best interest of the child. (b) If a protective order as defined in Section 6218 has been directed to the grandparent during the pendency of the proceeding, the court shall consider whether the best interest of the child requires that visitation by the grandparent be denied. (c) The petitioner shall give notice of the petition to each of the parents of the child, any stepparent, and any person who has physical custody of the child, by certified mail, return receipt requested, postage prepaid, to the person's last known address, or to the attorneys of record of the parties to the proceeding. (d) There is a rebuttable presumption affecting the burden of proof that the visitation of a grandparent is not in the best interest of a minor child if the child's parents agree that the grandparent should not be granted visitation rights. (e) Visitation rights may not be ordered under this section if that would conflict with a right of custody or visitation of a birth parent who is not a party to the proceeding. (f) Visitation ordered pursuant to this section shall not create a basis for or against a change of residence of the child, but shall be one of the factors for the court to consider in ordering a change of residence. (g) When a court orders grandparental visitation pursuant to this section, the court in its discretion may, based upon the relevant circumstances of the case: (1) Allocate the percentage of grandparental visitation between the parents for purposes of the calculation of child support pursuant to the statewide uniform guideline (Article 2 (commencing with Section 4050) of Chapter 2 of Part 2 of Division 9). (2) Notwithstanding Sections 3930 and 3951, order a parent or grandparent to pay to the other, an amount for the support of the child or grandchild. For purposes of this paragraph, support means costs related to visitation such as any of the following: (A) Transportation.

3103

Grandparent's rights; custody proceeding

(B) Provision of basic expenses for the child or grandchild, such as medical expenses, day care costs, and other necessities. (h) As used in this section, birth parent means birth parent as defined in Section 8512. (a) On petition to the court by a grandparent of a minor child, the court may grant reasonable visitation rights to the grandparent if the court does both of the following: (1) Finds that there is a preexisting relationship between the grandparent and the grandchild that has engendered a bond such that visitation is in the best interest of the child. (2) Balances the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority. (b) A petition for visitation under this section may not be filed while the natural or adoptive parents are married, unless one or more of the following circumstances exist: (1) The parents are currently living separately and apart on a permanent or indefinite basis. (2) One of the parents has been absent for more than one month without the other spouse knowing the whereabouts of the absent spouse. (3) One of the parents joins in the petition with the grandparents. (4) The child is not residing with either parent. (5) The child has been adopted by a stepparent. At any time that a change of circumstances occurs such that none of these circumstances exist, the parent or parents may move the court to terminate grandparental visitation and the court shall grant the termination. (c) The petitioner shall give notice of the petition to each of the parents of the child, any stepparent, and any person who has physical custody of the child, by personal service pursuant to Section 415.10 of the Code of Civil Procedure. (d) If a protective order as defined in Section 6218 has been directed to the grandparent during the pendency of the proceeding, the court shall consider whether the best interest of the child requires that any visitation by that grandparent should be denied. (e) There is a rebuttable presumption that the visitation of a grandparent is not in the best interest of a minor child if the natural or adoptive parents agree that the grandparent should not be granted visitation rights. (f) There is a rebuttable presumption affecting the burden of proof that the visitation of a grandparent is not in the best interest of a minor child if the parent who has been awarded sole legal and physical custody of the child in another proceeding, or the parent with whom the child resides if there is currently no operative custody order objects to visitation by the grandparent. (g) Visitation rights may not be ordered under this section if that would conflict with a right of custody or visitation of a birth parent who is not a party to the proceeding. (h) Visitation ordered pursuant to this section shall not create a basis for or against a change of residence of the child, but shall be one of the factors for the court to consider in ordering a change of residence. (i) When a court orders grandparental visitation pursuant to this section, the court in its discretion may, based upon the relevant circumstances of the case: (1) Allocate the percentage of grandparental visitation between the parents for purposes of the calculation of child support pursuant to the statewide uniform guideline (Article 2 (commencing with Section 4050) of Chapter 2 of Part 2 of Division 9). (2) Notwithstanding Sections 3930 and 3951, order a parent or grandparent to pay to the other, an amount for the support of the child or grandchild. For purposes of this paragraph, support means costs related to visitation such as any of the following: (A) Transportation.

3104

Grandparent's rights; petition by grandparent

(B) Provision of basic expenses for the child or grandchild, such as medical expenses, day care costs, and other necessities. (j) As used in this section, birth parent means birth parent as defined in Section 8512. Child Custody: Move Away issues (a) A parent entitled to the custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child. (b) It is the intent of the Legislature to affirm the decision in In re Marriage of Burgess (1996) 13 Cal.4th 25, and to declare that ruling to be the public policy and law of this state. UCCJEA: Interstate issues (a) Except as otherwise provided in Section 3424, a court of this state has jurisdiction to make an initial child custody determination only if any of the following are true: (1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state. (2) A court of another state does not have jurisdiction under paragraph (1), or a court of the home state of the child has declined to exercise jurisdiction on the grounds that this state is the more appropriate forum under Section 3427 or 3428, and both of the following are true: (A) The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence. (B) Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships. (3) All courts having jurisdiction under paragraph (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 3427 or 3428. (4) No court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2), or (3). (b) Subdivision (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this state. (c) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination. (a) Except as otherwise provided in Section 3424, a court of this state that has made a child custody determination consistent with Section 3421 or 3423 has exclusive, continuing jurisdiction over the determination until either of the following occurs: (1) A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships. (2) A court of this state or a court of another state determines that the child, the child's parents, and any person acting as a parent do not presently reside in this state. (b) A court of this state that has made a child custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under Section 3421. Except as otherwise provided in Section 3424, a court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under paragraph (1) or (2) of subdivision (a) of Section 3421 and either of the following determinations is made: (a) The court of the other state determines it no longer has exclusive, continuing jurisdiction under Section 3422 or that a court of this state would be a more convenient forum under Section 3427.

7501

Residence of children; determination by parents; restrictions; public policy Jurisdiction to make initial child custody determination

3421

3422

Continuing jurisdiction

3423

Modification of custody determination made by court of another state

3424

Temporary emergency jurisdiction

(b) A court of this state or a court of the other state determines that the child, the child's parents, and any person acting as a parent do not presently reside in the other state. (a) A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to, or threatened with, mistreatment or abuse. (b) If there is no previous child custody determination that is entitled to be enforced under this part and a child custody proceeding has not been commenced in a court of a state having jurisdiction under Sections 3421 to 3423, inclusive, a child custody determination made under this section remains in effect until an order is obtained from a court of a state having jurisdiction under Sections 3421 to 3423, inclusive. If a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction under Sections 3421 to 3423, inclusive, a child custody determination made under this section becomes a final determination, if it so provides and this state becomes the home state of the child. (c) If there is a previous child custody determination that is entitled to be enforced under this part, or a child custody proceeding has been commenced in a court of a state having jurisdiction under Sections 3421 to 3423, inclusive, any order issued by a court of this state under this section must specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under Sections 3421 to 3423, inclusive. The order issued in this state remains in effect until an order is obtained from the other state within the period specified or the period expires. (d) A court of this state that has been asked to make a child custody determination under this section, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of a state having jurisdiction under Sections 3421 to 3423, inclusive, shall immediately communicate with the other court. A court of this state which is exercising jurisdiction pursuant to Sections 3421 to 3423, inclusive, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of another state under a statute similar to this section shall immediately communicate with the court of that state to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order. (e) It is the intent of the Legislature in enacting subdivision (a) that the grounds on which a court may exercise temporary emergency jurisdiction be expanded. It is further the intent of the Legislature that these grounds include those that existed under Section 3403 of the Family Code as that section read on December 31, 1999, particularly including cases involving domestic violence. (a) Except as otherwise provided in Section 3424, a court of this state may not exercise its jurisdiction under this chapter if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this part, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under Section 3427. (b) Except as otherwise provided in Section 3424, a court of this state, before hearing a child custody proceeding, shall examine the court documents and other information supplied by the parties pursuant to Section 3429. If the court determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this part, the court of this state shall stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction substantially in accordance with this part does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding. (c) In a proceeding to modify a child custody determination, a court of this state shall determine

3426

Simultaneous proceedings in another state

3427

Inconvenient forum; declining to exercise jurisdiction

whether a proceeding to enforce the determination has been commenced in another state. If a proceeding to enforce a child custody determination has been commenced in another state, the court may do any of the following: (1) Stay the proceeding for modification pending the entry of an order of a court of the other state enforcing, staying, denying, or dismissing the proceeding for enforcement. (2) Enjoin the parties from continuing with the proceeding for enforcement. (3) Proceed with the modification under conditions it considers appropriate. (a) A court of this state that has jurisdiction under this part to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the court's own motion, or request of another court. (b) Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including: (1) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child. (2) The length of time the child has resided outside this state. (3) The distance between the court in this state and the court in the state that would assume jurisdiction. (4) The degree of financial hardship to the parties in litigating in one forum over the other. (5) Any agreement of the parties as to which state should assume jurisdiction. (6) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child. (7) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence. (8) The familiarity of the court of each state with the facts and issues in the pending litigation. (c) If a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper. (d) A court of this state may decline to exercise its jurisdiction under this part if a child custody determination is incidental to an action for dissolution of marriage or another proceeding while still retaining jurisdiction over the dissolution of marriage or other proceeding. (e) If it appears to the court that it is clearly an inappropriate forum, the court may require the party who commenced the proceeding to pay, in addition to the costs of the proceeding in this state, necessary travel and other expenses, including attorney's fees, incurred by the other parties or their witnesses. Payment is to be made to the clerk of the court for remittance to the proper party. (a) A child custody determination issued by a court of another state may be registered in this state, with or without a simultaneous request for enforcement, by sending all of the following to the appropriate court in this state: (1) A letter or other document requesting registration. (2) Two copies, including one certified copy, of the determination sought to be registered, and a statement under penalty of perjury that to the best of the knowledge and belief of the person seeking registration the order has not been modified. (3) Except as otherwise provided in Section 3429, the name and address of the person seeking registration and any parent or person acting as a parent who has been awarded custody or visitation in the child custody determination sought to be registered. (b) On receipt of the documents required by subdivision (a), the registering court shall do both of

3445

Registration of outof-state custody determination; method; duties of court; notice; contesting validity of registration; confirmation of registered order

the following: (1) Cause the determination to be filed as a foreign judgment, together with one copy of any accompanying documents and information, regardless of their form. (2) Serve notice upon the persons named pursuant to paragraph (3) of subdivision (a) and provide them with an opportunity to contest the registration in accordance with this section. (c) The notice required by paragraph (2) of subdivision (b) shall state all of the following: (1) That a registered determination is enforceable as of the date of the registration in the same manner as a determination issued by a court of this state. (2) That a hearing to contest the validity of the registered determination must be requested within 20 days after service of the notice. Child Support: Determining Income (a) The duty of support imposed by Section 3900 continues as to an unmarried child who has attained the age of 18 years, is a full-time high school student, and who is not self-supporting, until the time the child completes the 12th grade or attains the age of 19 years, whichever occurs first. (b) Nothing in this section limits a parent's ability to agree to provide additional support or the court's power to inquire whether an agreement to provide additional support has been made. In implementing the statewide uniform guideline, the courts shall adhere to the following principles: (a) A parent's first and principal obligation is to support his or her minor children according to the parent's circumstances and station in life. (b) Both parents are mutually responsible for the support of their children. (c) The guideline takes into account each parent's actual income and level of responsibility for the children. (d) Each parent should pay for the support of the children according to his or her ability. (e) The guideline seeks to place the interests of children as the state's top priority. (f) Children should share in the standard of living of both parents. Child support may therefore appropriately improve the standard of living of the custodial household to improve the lives of the children. (g) Child support orders in cases in which both parents have high levels of responsibility for the children should reflect the increased costs of raising the children in two homes and should minimize significant disparities in the children's living standards in the two homes. (h) The financial needs of the children should be met through private financial resources as much as possible. (i) It is presumed that a parent having primary physical responsibility for the children contributes a significant portion of available resources for the support of the children. (j) The guideline seeks to encourage fair and efficient settlements of conflicts between parents and seeks to minimize the need for litigation. (k) The guideline is intended to be presumptively correct in all cases, and only under special circumstances should child support orders fall below the child support mandated by the guideline formula. (l) Child support orders must ensure that children actually receive fair, timely, and sufficient support reflecting the state's high standard of living and high costs of raising children compared

3901

Duration of duty of support

4053

Implementation of statewide uniform guideline; principles to be followed by court

4057

Amount of child support established by formula; rebuttable presumption

to other states. (a) The amount of child support established by the formula provided in subdivision (a) of Section 4055 is presumed to be the correct amount of child support to be ordered. (b) The presumption of subdivision (a) is a rebuttable presumption affecting the burden of proof and may be rebutted by admissible evidence showing that application of the formula would be unjust or inappropriate in the particular case, consistent with the principles set forth in Section 4053, because one or more of the following factors is found to be applicable by a preponderance of the evidence, and the court states in writing or on the record the information required in subdivision (a) of Section 4056: (1) The parties have stipulated to a different amount of child support under subdivision (a) of Section 4065. (2) The sale of the family residence is deferred pursuant to Chapter 8 (commencing with Section 3800) of Part 1 and the rental value of the family residence in which the children reside exceeds the mortgage payments, homeowner's insurance, and property taxes. The amount of any adjustment pursuant to this paragraph shall not be greater than the excess amount. (3) The parent being ordered to pay child support has an extraordinarily high income and the amount determined under the formula would exceed the needs of the children. (4) A party is not contributing to the needs of the children at a level commensurate with that party's custodial time. (5) Application of the formula would be unjust or inappropriate due to special circumstances in the particular case. These special circumstances include, but are not limited to, the following: (A) Cases in which the parents have different time-sharing arrangements for different children. (B) Cases in which both parents have substantially equal time-sharing of the children and one parent has a much lower or higher percentage of income used for housing than the other parent. (C) Cases in which the children have special medical or other needs that could require child support that would be greater than the formula amount. (a) (1) The income of the obligor parent's subsequent spouse or nonmarital partner shall not be considered when determining or modifying child support, except in an extraordinary case where excluding that income would lead to extreme and severe hardship to any child subject to the child support award, in which case the court shall also consider whether including that income would lead to extreme and severe hardship to any child supported by the obligor or by the obligor's subsequent spouse or nonmarital partner. (2) The income of the obligee parent's subsequent spouse or nonmarital partner shall not be considered when determining or modifying child support, except in an extraordinary case where excluding that income would lead to extreme and severe hardship to any child subject to the child support award, in which case the court shall also consider whether including that income would lead to extreme and severe hardship to any child supported by the obligee or by the obligee's subsequent spouse or nonmarital partner. (b) For purposes of this section, an extraordinary case may include a parent who voluntarily or intentionally quits work or reduces income, or who intentionally remains unemployed or underemployed and relies on a subsequent spouse's income. (c) If any portion of the income of either parent's subsequent spouse or nonmarital partner is allowed to be considered pursuant to this section, discovery for the purposes of determining income shall be based on W2 and 1099 income tax forms, except where the court determines that application would be unjust or inappropriate. (d) If any portion of the income of either parent's subsequent spouse or nonmarital partner is allowed to be considered pursuant to this section, the court shall allow a hardship deduction

4057.5

Income of obligor parent's subsequent spouse or nonmarital partner; consideration

based on the minimum living expenses for one or more stepchildren of the party subject to the order. (e) The enactment of this section constitutes cause to bring an action for modification of a child support order entered prior to the operative date of this section. (a) The annual gross income of each parent means income from whatever source derived, except as specified in subdivision (c) and includes, but is not limited to, the following: (1) Income such as commissions, salaries, royalties, wages, bonuses, rents, dividends, pensions, interest, trust income, annuities, workers' compensation benefits, unemployment insurance benefits, disability insurance benefits, social security benefits, and spousal support actually received from a person not a party to the proceeding to establish a child support order under this article. (2) Income from the proprietorship of a business, such as gross receipts from the business reduced by expenditures required for the operation of the business. (3) In the discretion of the court, employee benefits or self-employment benefits, taking into consideration the benefit to the employee, any corresponding reduction in living expenses, and other relevant facts. (b) The court may, in its discretion, consider the earning capacity of a parent in lieu of the parent's income, consistent with the best interests of the children. (c) Annual gross income does not include any income derived from child support payments actually received, and income derived from any public assistance program, eligibility for which is based on a determination of need. Child support received by a party for children from another relationship shall not be included as part of that party's gross or net income. (a) The court shall order the following as additional child support: (1) Child care costs related to employment or to reasonably necessary education or training for employment skills. (2) The reasonable uninsured health care costs for the children as provided in Section 4063. (b) The court may order the following as additional child support: (1) Costs related to the educational or other special needs of the children. (2) Travel expenses for visitation. (a) When making an order pursuant to paragraph (2) of subdivision (a) of Section 4062, the court shall: (1) Advise each parent, in writing or on the record, of his or her rights and liabilities, including financial responsibilities. (2) Include in its order the time period for a parent to reimburse the other parent for the reimbursing parent's share of the reasonable additional child support costs subject to the requirements of this section. (b) Unless there has been an assignment of rights pursuant to Section 11477 of the Welfare and Institutions Code, when either parent accrues or pays costs pursuant to an order under this section, that parent shall provide the other parent with an itemized statement of the costs within a reasonable time, but not more than 30 days after accruing the costs. These costs shall then be paid as follows: (1) If a parent has already paid all of these costs, that parent shall provide proof of payment and a request for reimbursement of his or her court-ordered share to the other parent. (2) If a parent has paid his or her court-ordered share of the costs only, that parent shall provide proof of payment to the other parent, request the other parent to pay the remainder of the costs directly to the provider, and provide the reimbursing parent with any necessary information about how to make the payment to the provider. (3) The other parent shall make the reimbursement or pay the remaining costs within the time period specified by the court, or, if no period is specified, within a reasonable time not to exceed 30 days from notification of the amount due, or according to any payment schedule set by the health care provider for either parent unless the parties

4058

Annual gross income of parents

4062

Additional child support

4063

Uninsured health care costs; payment procedures

agree in writing to another payment schedule or the court finds good cause for setting another payment schedule. (4) If the reimbursing parent disputes a request for payment, that parent shall pay the requested amount and thereafter may seek judicial relief under this section and Section 290. If the reimbursing parent fails to pay the other parent as required by this subdivision, the other parent may seek judicial relief under this section and Section 290. (c) Either parent may file a noticed motion to enforce an order issued pursuant to this section. In addition to the court's powers under Section 290, the court may award filing costs and reasonable attorney's fees if it finds that either party acted without reasonable cause regarding his or her obligations pursuant to this section. (d) There is a rebuttable presumption that the costs actually paid for the uninsured health care needs of the children are reasonable, except as provided in subdivision (e). (e) Except as provided in subdivision (g): (1) The health care insurance coverage, including, but not limited to, coverage for emergency treatment, provided by a parent pursuant to a court order, shall be the coverage to be utilized at all times, consistent with the requirements of that coverage, unless the other parent can show that the health care insurance coverage is inadequate to meet the child's needs. (2) If either parent obtains health care insurance coverage in addition to that provided pursuant to the court order, that parent shall bear sole financial responsibility for the costs of that additional coverage and the costs of any care or treatment obtained pursuant thereto in excess of the costs that would have been incurred under the health care insurance coverage provided for in the court order. (f) Except as provided in subdivision (g): (1) If the health care insurance coverage provided by a parent pursuant to a court order designates a preferred health care provider, that preferred provider shall be used at all times, consistent with the terms and requirements of that coverage. (2) If either parent uses a health care provider other than the preferred provider inconsistent with the terms and requirements of the court-ordered health care insurance coverage, the parent obtaining that care shall bear the sole responsibility for any nonreimbursable health care costs in excess of the costs that would have been incurred under the court-ordered health care insurance coverage had the preferred provider been used. (g) When ruling on a motion made pursuant to this section, in order to ensure that the health care needs of the child under this section are met, the court shall consider all relevant facts, including, but not limited to, the following: (1) The geographic access and reasonable availability of necessary health care for the child which complies with the terms of the health care insurance coverage paid for by either parent pursuant to a court order. Health insurance shall be rebuttably presumed to be accessible if services to be provided are within 50 miles of the residence of the child subject to the support order. If the court determines that health insurance is not accessible, the court shall state the reason on the record. (2) The necessity of emergency medical treatment that may have precluded the use of the health care insurance, or the preferred health care provider required under the insurance, provided by either parent pursuant to a court order. (3) The special medical needs of the child. (4) The reasonable inability of a parent to pay the full amount of reimbursement within a 30-day period and the resulting necessity for a court-ordered payment schedule. Spousal Support: Determining, waiver Subject to this division, a person shall support the person's spouse. In ordering spousal support under this part, the court shall consider all of the following

4300 4320

Individual's duty of support Determination of

amount due for support; considerations

circumstances: (a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following: (1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment. (2) The extent to which the supported party's present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties. (b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party. (c) The ability of the supporting party to pay spousal support, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living. (d) The needs of each party based on the standard of living established during the marriage. (e) The obligations and assets, including the separate property, of each party. (f) The duration of the marriage. (g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party. (h) The age and health of the parties. (i) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party. (j) The immediate and specific tax consequences to each party. (k) The balance of the hardships to each party. (l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a reasonable period of time for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court's discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties. (m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4324.5 or4325. (n) Any other factors the court determines are just and equitable. (a) In a judgment of dissolution of marriage or legal separation of the parties, the court may order a party to pay for the support of the other party an amount, for a period of time, that the court determines is just and reasonable, based on the standard of living established during the marriage, taking into consideration the circumstances as provided in Chapter 2 (commencing with Section 4320). (b) When making an order for spousal support, the court may advise the recipient of support

4330

Order of support; advice to support recipient

4332

Findings of court; standard of living during marriage; other circ. Cohabitation with person of opposite sex; rebuttable presumption of decreased need for support; modification or termination of support

4323

that he or she should make reasonable efforts to assist in providing for his or her support needs, taking into account the particular circumstances considered by the court pursuant to Section 4320, unless, in the case of a marriage of long duration as provided for in Section 4336, the court decides this warning is inadvisable. In a proceeding for dissolution of marriage or for legal separation of the parties, the court shall make specific factual findings with respect to the standard of living during the marriage, and, at the request of either party, the court shall make appropriate factual determinations with respect to other circumstances. Spousal Support: Modification & Termination (a)(1) Except as otherwise agreed to by the parties in writing, there is a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support if the supported 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 as provided for in Chapter 6 (commencing with Section 3650) of Part 1. (2) Holding oneself out to be the husband or wife of the person with whom one is cohabiting is not necessary to constitute cohabitation as the term is used in this subdivision. (b) The income of a supporting spouse's subsequent spouse or nonmarital partner shall not be considered when determining or modifying spousal support. (c) Nothing in this section precludes later modification or termination of spousal support on proof of change of circumstances. (a) If a court orders spousal support for a contingent period of time, the obligation of the supporting party terminates on the happening of the contingency. The court may, in the order, order the supported party to notify the supporting party, or the supporting party's attorney of record, of the happening of the contingency. (b) If the supported party fails to notify the supporting party, or the attorney of record of the supporting party, of the happening of the contingency and continues to accept spousal support payments, the supported party shall refund payments received that accrued after the happening of the contingency, except that the overpayments shall first be applied to spousal support payments that are then in default. An order for spousal support terminates at the end of the period provided in the order and shall not be extended unless the court retains jurisdiction in the order or under Section 4336.

4334

Orders for contingent periods of time; termination; notification

4335

4336

Termination of spousal support order; extension of order Retention of jurisdiction; application of section

(a) Except on written agreement of the parties to the contrary or a court order terminating spousal support, the court retains jurisdiction indefinitely in a proceeding for dissolution of marriage or for legal separation of the parties where the marriage is of long duration. (b) For the purpose of retaining jurisdiction, there is a presumption affecting the burden of producing evidence that a marriage of 10 years or more, from the date of marriage to the date of separation, is a marriage of long duration. However, the court may consider periods of separation during the marriage in determining whether the marriage is in fact of long duration. Nothing in this subdivision precludes a court from determining that a marriage of less than 10 years is a marriage of long duration. (c) Nothing in this section limits the court's discretion to terminate spousal support in later proceedings on a showing of changed circumstances. (d) This section applies to the following: (1) A proceeding filed on or after January 1, 1988. (2) A proceeding pending on January 1, 1988, in which the court has not entered a permanent spousal support order or in which the court order is subject to modification. 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 the other party. Paternity: presumption issues

4337

Termination of support order; death; remarriage

7540

7541

Conclusive presumption as child of marriage; exceptions Resolution of question of paternity upon finding of court based upon blood test that husband is not father of child; notice of motion for blood tests

Except as provided in Section 7541, 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.

(a) Notwithstanding Section 7540, if the court finds that the conclusions of all the experts, as disclosed by the evidence based on blood tests performed pursuant to Chapter 2 (commencing with Section 7550), are that the husband is not the father of the child, the question of paternity of the husband shall be resolved accordingly. (b) The notice of motion for blood tests under this section may be filed not later than two years from the child's date of birth by the husband, or for the purposes of establishing paternity by the presumed father or the child through or by the child's guardian ad litem. As used in this subdivision, presumed father has the meaning given in Sections 7611 and 7612. (c) The notice of motion for blood tests under this section may be filed by the mother of the child not later than two years from the child's date of birth if the child's biological father has filed an affidavit with the court acknowledging paternity of the child. (d) The notice of motion for blood tests pursuant to this section shall be supported by a declaration under oath submitted by the moving party stating the factual basis for placing the issue of paternity before the court. (e) Subdivision (a) does not apply, and blood tests may not be used to challenge paternity, in any of the following cases: (1) A case that reached final judgment of paternity on or before September 30, 1980. (2) A case coming within Section 7613. (3) A case in which the wife, with the consent of the husband, conceived by means of a surgical procedure. A man is presumed to be the natural father of a child if he meets the conditions provided in Chapter 1 (commencing with Section 7540) or Chapter 3 (commencing with Section 7570) of Part 2 or in any of the following subdivisions: (a) He and the child's natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a judgment of separation is entered by a court. (b) Before the child's birth, he and the child's natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true: (1) If the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage, or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce. (2) If the attempted marriage is invalid without a court order, the child is born within 300 days after the termination of cohabitation. (c) After the child's birth, he and the child's natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true: (1) With his consent, he is named as the child's father on the child's birth certificate. (2) He is obligated to support the child under a written voluntary promise or by court

7611

Status as natural father; presumption; conditions

order. (d) He receives the child into his home and openly holds out the child as his natural child. (e) If the child was born and resides in a nation with which the United States engages in an Orderly Departure Program or successor program, he acknowledges that he is the child's father in a declaration under penalty of perjury, as specified in Section 2015.5 of the Code of Civil Procedure. This subdivision shall remain in effect only until January 1, 1997, and on that date shall become inoperative. (f) The child is in utero after the death of the decedent and the conditions set forth in Section 249.5 of the Probate Code are satisfied. Domestic Violence & Restraining Orders (a) Where the court considers the issue of custody or visitation the court is encouraged to make a reasonable effort to ascertain whether or not any emergency protective order, protective order, or other restraining order is in effect that concerns the parties or the minor. The court is encouraged not to make a custody or visitation order that is inconsistent with the emergency protective order, protective order, or other restraining order, unless the court makes both of the following findings: (1) The custody or visitation order cannot be made consistent with the emergency protective order, protective order, or other restraining order. (2) The custody or visitation order is in the best interest of the minor. (b) Whenever custody or visitation is granted to a parent in a case in which domestic violence is alleged and an emergency protective order, protective order, or other restraining order has been issued, the custody or visitation order shall specify the time, day, place, and manner of transfer of the child for custody or visitation to limit the child's exposure to potential domestic conflict or violence and to ensure the safety of all family members. Where the court finds a party is staying in a place designated as a shelter for victims of domestic violence or other confidential location, the court's order for time, day, place, and manner of transfer of the child for custody or visitation shall be designed to prevent disclosure of the location of the shelter or other confidential location. (c) When making an order for custody or visitation in a case in which domestic violence is alleged and an emergency protective order, protective order, or other restraining order has been issued, the court shall consider whether the best interest of the child, based upon the circumstances of the case, requires that any custody or visitation arrangement shall be limited to situations in which a third person, specified by the court, is present, or whether custody or visitation shall be suspended or denied. (a) Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence against the other party seeking custody of the child or against the child or the child's siblings within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Section 3011. This presumption may only be rebutted by a preponderance of the evidence. (b) In determining whether the presumption set forth in subdivision (a) has been overcome, the court shall consider all of the following factors: (1) Whether the perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child. In determining the best interest of the child, the preference for frequent and continuing contact with both parents, as set forth in subdivision (b) of Section 3020, or with the noncustodial parent, as set forth in paragraph (1) of subdivision (a) of Section 3040, may not be used to rebut the presumption, in whole or in part. (2) Whether the perpetrator has successfully completed a batterer's treatment program that meets the criteria outlined in subdivision (c) of Section 1203.097 of the Penal Code. (3) Whether the perpetrator has successfully completed a program of alcohol or drug

3031

Protective or restraining orders; findings; transfer of children; detail specific custody or visitation orders; required presence of third party

3044

Presumption against persons perpetrating domestic violence

abuse counseling if the court determines that counseling is appropriate. (4) Whether the perpetrator has successfully completed a parenting class if the court determines the class to be appropriate. (5) Whether the perpetrator is on probation or parole, and whether he or she has complied with the terms and conditions of probation or parole. (6) Whether the perpetrator is restrained by a protective order or restraining order, and whether he or she has complied with its terms and conditions. (7) Whether the perpetrator of domestic violence has committed any further acts of domestic violence. (c) For purposes of this section, a person has perpetrated domestic violence when he or she is found by the court to have intentionally or recklessly caused or attempted to cause bodily injury, or sexual assault, or to have placed a person in reasonable apprehension of imminent serious bodily injury to that person or to another, or to have engaged in any behavior involving, but not limited to, threatening, striking, harassing, destroying personal property or disturbing the peace of another, for which a court may issue an ex parte order pursuant to Section 6320 to protect the other party seeking custody of the child or to protect the child and the child's siblings. (d)(1) For purposes of this section, the requirement of a finding by the court shall be satisfied by, among other things, and not limited to, evidence that a party seeking custody has been convicted within the previous five years, after a trial or a plea of guilty or no contest, of any crime against the other party that comes within the definition of domestic violence contained in Section 6211 and of abuse contained in Section 6203, including, but not limited to, a crime described in subdivision (e) of Section 243 of, or Section 261, 262, 273.5, 422, or 646.9 of, the Penal Code. (2) The requirement of a finding by the court shall also be satisfied if any court, whether that court hears or has heard the child custody proceedings or not, has made a finding pursuant to subdivision (a) based on conduct occurring within the previous five years. (e) When a court makes a finding that a party has perpetrated domestic violence, the court may not base its findings solely on conclusions reached by a child custody evaluator or on the recommendation of the Family Court Services staff, but shall consider any relevant, admissible evidence submitted by the parties. (f) In any custody or restraining order proceeding in which a party has alleged that the other party has perpetrated domestic violence in accordance with the terms of this section, the court shall inform the parties of the existence of this section and shall give them a copy of this section prior to any custody mediation in the case. For purposes of this act, abuse means any of the following: (a) Intentionally or recklessly to cause or attempt to cause bodily injury. (b) Sexual assault. (c) To place a person in reasonable apprehension of imminent serious bodily injury to that person or to another. (d) To engage in any behavior that has been or could be enjoined pursuant to Section 6320. Domestic violence is abuse perpetrated against any of the following persons: (a) A spouse or former spouse. (b) A cohabitant or former cohabitant, as defined in Section 6209. (c) A person with whom the respondent is having or has had a dating or engagement relationship. (d) A person with whom the respondent has had a child, where the presumption applies that the male parent is the father of the child of the female parent under the Uniform Parentage Act (Part 3 (commencing with Section 7600) of Division 12). (e) A child of a party or a child who is the subject of an action under the Uniform Parentage Act, where the presumption applies that the male parent is the father of the child to be protected. (f) Any other person related by consanguinity or affinity within the second degree.

6203

Abuse defined

6211

Domestic violence defined

6220

Purpose

6320

Ex parte order enjoining contact; companion animals

The purposes of this division are to prevent the recurrence of acts of violence and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to enable these persons to seek a resolution of the causes of the violence. (a) The court may issue an ex parte order enjoining a party from molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including, but not limited to, making annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, coming within a specified distance of, or disturbing the peace of the other party, and, in the discretion of the court, on a showing of good cause, of other named family or household members. (b) On a showing of good cause, the court may include in a protective order a grant to the petitioner of the exclusive care, possession, or control of any animal owned, possessed, leased, kept, or held by either the petitioner or the respondent or a minor child residing in the residence or household of either the petitioner or the respondent. The court may order the respondent to stay away from the animal and forbid the respondent from taking, transferring, encumbering, concealing, molesting, attacking, striking, threatening, harming, or otherwise disposing of the animal. (a) An order denying a petition for an ex parte order pursuant to Section 6320 shall include the reasons for denying the petition. (b) An order denying a jurisdictionally adequate petition for an ex parte order, pursuant to Section 6320, shall provide the petitioner the right to a noticed hearing on the earliest date that the business of the court will permit, but not later than 21 days or, if good cause appears to the court, 25 days from the date of the order. The petitioner shall serve on the respondent, at least 5 days before the hearing, copies of all supporting papers filed with the court, including the application and affidavits. (c) Notwithstanding subdivision (b), upon the denial of the ex parte order pursuant to Section 6320, the petitioner shall have the option of waiving his or her right to a noticed hearing. However, nothing in this section shall preclude a petitioner who waives his or her right to a noticed hearing from refiling a new petition, without prejudice, at a later time. (a) The court may issue an ex parte order excluding a party from the family dwelling, the dwelling of the other party, the common dwelling of both parties, or the dwelling of the person who has care, custody, and control of a child to be protected from domestic violence for the period of time and on the conditions the court determines, regardless of which party holds legal or equitable title or is the lessee of the dwelling. (b) The court may issue an order under subdivision (a) only on a showing of all of the following: (1) Facts sufficient for the court to ascertain that the party who will stay in the dwelling has a right under color of law to possession of the premises. (2) That the party to be excluded has assaulted or threatens to assault the other party or any other person under the care, custody, and control of the other party, or any minor child of the parties or of the other party. (3) That physical or emotional harm would otherwise result to the other party, to any person under the care, custody, and control of the other party, or to any minor child of the parties or of the other party.

6320.5

Order denying petition for ex parte order; reasons; right to noticed hearing; right to waive hearing

6321

Ex parte order excluding party from dwelling