Highlights of changes in the manner which family law attorneys are practicing.
By Michele B. Brown, CLS-F (California)
It’s been said that ‘Now is the time for Family Law,” and with Elkins at the forefront of changes in Family Law, that statement is resonating with the Legislature and the Judicial Council. The 2010 and 2011 legislative sessions provided Family Law with significant changes in the law and the manner in which family law attorneys are practicing law.
Here are a few highlights.
Amends FC §§ 7573, 7576, 7612 and 7613.
Paternity is an evolving body of law that will continue to change as familial parent-child relationships progress. The paternity statutes are strewn with competing presumptions, whose goal is the best interest of the child. However, under existing law, a Voluntary Declaration of Paternity creates a presumption that cannot be balanced against the other paternity presumptions. Instead, since it has the effect of a Judgment, it trumps other presumptions, unless set aside under limited circumstances.
AB 1349 responded to the issue raised in Kevin Q. v. Lauren W. (2009) 175 Cal.App.4th 111, whereby mother had the ability to use a Declaration of Paternity executed by the biological father during a custody case between mother and §7611(d) presumed father (Kevin Q) to terminate Kevin’s contact with the child, as the court held the judgment created by the Declaration trumped the presumed father status.
AB 1349 does the following:
- Ends the ‘absolute priority’ a Declaration of Paternity has over other paternity claims and allows a §7611 presumed father to file a Petition under §7630 to set aside the Declaration, if done within two years of the Declaration’s execution.
- Invalidates the Declaration if, at the time of execution, the child already had a presumed parent under §7540 or §7611(a-c) or the man signing the declaration was a sperm donor, unless the mother and donor signed a written agreement regarding paternity prior to the conception of the child.
- Provides factors the court must take into consideration in determining whether to set aside the Declaration under a §7630 Petition, including the best interest of the child and the benefit or detriment to the child of continuing that relationship.
- Provides ‘the weightier considerations of policy and logic shall control’ if there is a conflict between the two presumptions.
AB 1050: Children’s voices.
Amends FC §3042 regarding a child’s participation in family law child custody proceedings (effective January 1, 2012).
- Requires a court to consider a child’s wishes regarding custody, if the child is of a sufficient age and capacity.
- Rarely have children been permitted to testify.
- Children’s preferences usually provided through a mediator or minor’s counsel.
Effective January 1, 2012, AB 1050 does the following:
- The court is required to consider a child’s wishes regarding both custody and visitation.
- If a child is age 14 or older, and that child desires to address the court, the court shall permit the child to do so, unless a finding is made that it is not in the child’s best interest.
- If such findings are made, the court shall find alternative means to ensure the children’s voice is heard, through minor’s counsel, a mediator, an evaluator or other means.
- A child younger than 14 is not prohibited from addressing the court.
- A child of any age is not required to address the court.
Per a directive from AB 1050, The Judicial Council proposed Family Law Rule of Court 5.250 (effective January 1, 2012), which does the following:
- Establishes procedures for children’s participation and testimony in court
- Provides criteria to determine if testifying is in the child’s best interest
- Guidelines for receiving direct testimony
- Alternative methods to examine children
- Responsibilities of court connected or appointed professionals.
Amends CCP §§ 527.6, 527.8, 527.85; FC § 6345; W&I §§ 213.5 and 15657.03, relating to protective orders.
When a court has issued an order under any of the above sections to enjoin a party from certain acts, a party is permitted to terminate or modify protective orders early on a written stipulation or motion. However, existing law does not specify the manner of service or notice required on the protected party.
Under AB 454, if an action to terminate or modify the protective order early is filed, it must be served on the protected party in the following manner(s):
- Personally served per to CCP §1005(b),
- Served via the Secretary of State if the address is confidential, or
- Another type of service designed to afford actual notice upon good cause shown.
- If such service is not effectuated, the hearing is continued or denied without prejudice
- Nothing in this statute prohibits the protected party from waiving notice if s/he appears at the hearing without having been properly served
Family Law Rules of Court, (Rule 5.1 – 5.487).
These Rules incorporate new statutory requirements, the Elkins Task Force recommendations, new judicial council forms and impose a plethora of new rules on family law practitioners. Some of the notable changes include the following:
Effective July 1, 2011:
Rule 5.118(f) – limits all moving and responding declarations to 10 pages and reply declarations to 5 pages, unless otherwise ordered by the court or an expert witness declaration, and provides rules for declaration objections.
Rule 5.119 – provides the court with procedures for live testimony, factors to deny live testimony and requires service of third party witness lists with the moving and responding papers.
Proposed, Effective January 1, 2012: http://www.courts.ca.gov/documents/SPR11-36.pdf.
Rule 5.9 – telephonic appearances permitted if the court determines it is appropriate
Rule 5.12 – family law discovery motions are governed by CCP §§ 2016.010 – 2036.050 and FC §2100 et. seq.
Rule 5.14 – authorizes sanctions for a violation of these rules of court.
Rule 5.54 – requires Petitioner and Respondent to serve their Preliminary Declarations of Disclosure within 60 days of filing the Petition or Response.
Rule 5.83 – implements a Family Centered Case Resolution Process to assist parties in resolving their cases and provides courts the authority to make FC § 2451 orders
Rule 5.92 – Order to Show Cause and Notice of Motion forms will be replaced with a Request for Order [FL-300] form. Responsive Declaration is replaced with a Responsive Declaration to Request for Order [FL-320].
Rule 5.123- requires preparation of an Order After Hearing within five calendar days of the hearing.
Rules 5.151, 5.165, 5.167 and 5.169 – address ex parte applications, when they may be used and what is required..
Rule 5.242 – details the duties of minor’s counsel: to include the child’s wishes and admissible evidence regarding the child’s best interests.
Rule 5.260 – motions to modify support must include a current Income and Expense Declaration: absent a request to increase to guideline support, a declaration showing a change of circumstances must also accompany the motion.
Rule 5.380 – permits a Stipulation for Parentage in a Domestic Violence Action and provides Agreed Judgment of Parentage form [Form DV-180]
Rule 5.381- child custody, visitation and support orders issued in conjunction with a protective order under FC §6218 will remain in effect even after termination of the protective order.
Rule 5.390 – lists issues for which a separate/bifurcated trial may be sought.
Rule 5.393 and 5.394 – detail the requirements for long cause trials and trial briefs.
Rule 5.427-a Request for Attorney Fees and Costs Order Attachment [Form FL-319] must be attached to any Request for Order seeking attorney fees with either Form FL-158 or a comparable declaration that addresses all the factors in Form FL-158.
Rules 5.405, 5.407 and 5.409 – Requires courts to identify all errors in a judgment prior to rejection, provides uniform, statewide forms and procedures for filing a default or uncontested judgment and a Judgment checklist [Form FL-182].
Michele B. Brown, CLS-F, obtained her JD from the University of San Diego School of Law in 1994, where she received the 1994 Award for Excellence in Trial Advocacy. She obtained a Bachelor of Arts in Political Science, with a Minor in Spanish, from the University of California, Riverside in 1989. As a Rotary International Scholar, she studied Politics and French at Macquarie University in Sydney, Australia. Ms. Brown was also an exchange student to London, England through the British Universities North American Club and worked as a legislative analyst and writer for the UC Federal Reporter in Washington, D.C. Ms. Brown was admitted to the State Bar of California and the Federal District Court for the Southern District in 1994 and she became a Certified Specialist in Family Law in 2002 and currently is with the The Law Offices of Beatrice L. Snider in San Diego, Calif. www.blsapc.com