Posts

California Statutory Criteria For Determination of Custody Disputes

Family Code § 3022 provides the court with authority to make an order for the custody of a minor child that seems necessary and proper during the pendency of a proceeding or at any time thereafter. 
California family law courts use Family Code § 3040 to establish the order of preference in granting custody in divorce actions.  The first section of this code section provides that “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.”
Parties involved in a custody dispute would be wise to review Family Code §§ 3011 and 3020.  Since these two sections outline the criteria that California judges use to determine custody disputes, parties to such actions should address these factors in their declarations when providing testimony and argument.  Successful litigants spend time addressing facts that directly address these factors.  Spending too much time on facts that do not relate to the above sections…
Family Law Judgments MAY be Set Aside Due to Fraud!

            Civil litigants have the duty and obligation to be transparent with one another. Underhand conduct and trickery cannot and should not be tolerated by the trial court. This extends to the filing of documents with the court and representation made to adverse parties. These requirements are exponentially increased when dealing with a dissolution matter between spouses. The existence of both a confidential and fiduciary relationship requires that parties not only be transparent but also act in accordance with the utmost level of integrity and good faith dealing. When individuals seek to circumvent said requirements, the trials courts have the ability to right the wrong and set aside fraudulent and unjust orders. 

Code of Civil Procedure, Section 473 provides in part as follows, 

"The court may, upon any terms as may be just, relieve a pa1iy or his or her legal representative from a judgment, dismissal, order, or other proce…
Image
CHILD CUSTODY - What constitutes a "Move Away"?

             Some litigants, and judges, have a hard time with determining whether a move constitutes a "move away" in a family law proceeding.  We have found that often judges are reluctant to deem a relocation as what it often is, a "move away."  This often has a very serious, and negative, impact on the non-moving party. 

              Relocation out of state is not necessary for a relocation to be considered a move away. In re Marriage of Burgess, (1996) 13 Cal. 4th 25, 28. The court in Burgess held that a mother's move from Tehachapi, CA to Lancaster, CA, approximately forty miles away, constituted a move away, requiring court determination that such a move would not "prejudice the rights or welfare of the children." Id. 

             Although the best interest standard applies to move-away requests dealing at the temporary stage, said standard must be applied in the right manner. The "b…
Image
FORMAL DISCOVERY IS LIBERALLY CONSTRUED IN CALIFORNIA!

When enforcing the right to full and complete discovery, Family Law courts should be liberal in its exercise.  Code Civ. Proc. § 2017.010 provides as follows:  Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing,…
Image
CIVIL DISCOVERY ACT DOES APPLY TO FAMILY LAW CASES!

Often, Family Law forget that they are practicing civil litigation.  Both statutory and case law have made it abundantly clear, the Civil Discovery Act fully applies to divorce and paternity actions.  Family Law attorneys often have no idea how to use the CCP.  You would be shocked to find some Family Law attorneys, who call themselves experts in the area, don't even know what a Separate Statement is.  Good luck if you find yourself represented by someone like this.  That being said, lets talk about the formal discovery tools.  One such tool is the INTERROGATORY, AKA a question posed to a party.  Code of Civ. Proc. §2030.220 provides as follows,  “(a) Each answer in a response to interrogatories shall be as completeand straightforward as the information reasonably available … (b) If an interrogatory cannot be answered completely, it shall be answered to the extent possible. (c) If the responding party does not have personal knowledge…
Image
BEYOND GUIDELINE CHILD SUPPORT           For nearly 100 years, California courts have consistently maintained and fostered the principle that the duty of a parent does not end by providing mere necessities of life if he is able to afford more. Bailey vs. Superior Court(1932) 215 Cal.548, 555. On countless occasions courts have explicitly established that the child has a right“to be supported in a styleand condition that is consonant with the position in society of its parents.” Kyne vs. Kyne(1945) 70 Cal.App. 2d 80, 83.          The California Family Code provides specific code provisions in regards the establishment of child support orders in the state by trial courts.  Said code sections demonstrate a very clear intent and objective of the legislature to ensure fair and appropriatechild support orders are rendered for children with parents from all walks of lifeFamily Code§ 4053 (a) provides as follows, “In implementing the statewide uniform guideline, the courts shall adhere to the …
Image
Paying too much in Spousal Support? Call us!
Modification of a spousal support order is a matter for the exercise of the court’s discretion, based upon a showing of a change of circumstances since the last spousal support order. In re Marriage of Meegan (1992) 11 Cal. App. 4th156, 161;In re Marriage of Stephenson(1995) 39 Cal. App. 4th71, 76-77. “In determining whether a change of circumstances has occurred, the trial court is required to reconsider the same standards and criteria set forth in . . . now Family Code section 4320 it considered in making the initial long-term order at the time of judgement and any subsequent modification order.”Marriage of Stephenson(1995) 39 Cal. App. 4th71, 77. In other words, in considering a spousal support modification request - … given the predicate of a change of circumstances – the trial court looks at the various factors bearing on spousal support under section 4320.In re marriage of Khera and Sammer(2012) 206 Cal.App. 4th1467, 1475.Family Code §…