Julie Saffren, Esq. August 2013

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1 Julie Saffren, Esq. August 2013

2 Family Court in Santa Clara County and the needs of the people who access our court Common legal issues in Family Law Parentage Child support Child Custody and Visitation Divorce or Legal Separation Spousal Support Domestic Violence Restraining Orders Resources and referrals

3 Santa Clara County has an excellent website We have three Family Court locations San Jose, Sunnyvale and Morgan Hill Child Support court at another San Jose location For basic address or parking information, see Your client may already have an open case If so, their physical court location is already determined If not, when they open a new case, they are assigned a court location

4 See Depends on the case type Cases including DV or FL in the case numbers are public Cases including CP are not, due to confidentiality Search the civil calendar by case number or by party name Be sure to give a date range default setting is just today s date You can see what documents have been filed and what events have been calendared

5 You can view all statewide Judicial Council forms at Organized by category, such as FL-100 to FL-199 for dissolutions FL-200 to 299 for parentage FL-300 to 399 for motions You can view local forms for Family Court at family_attachments.shtml

6 Diverse; may not speak English well May or may not have court papers If they have papers, they may not have all of them Family Court cases generate a lot of paper Some litigants have 1 question about 1 issue How can I modify my child support because I lost my job? How can I change my custody orders? Some have many questions about multiple legal issues in their Family Law matter

7 These may seem like Family Law because they involve children, but they are different Juvenile Dependency: when a minor is abused or neglected Juvenile Justice: When a minor breaks the law (formerly known as Delinquency) Probate matters: guardianship of a minor child by a non-parent; adoption; name change If a client needs help in these areas, start with the Court s online self help page

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10 Separated parents or unmarried parents often seek child support Under the law, both parents have a legal duty to provide support to their children Food, shelter, clothing Health care, also child care Child support is payable until the child is age 18 AND has graduated from high school but no longer than the child s 19 th birthday. 8/12/

11 Parent requests support within a divorce or custody case (FL) or a parentage case (CP) opened at the Family Court or A Government case is opened, through: Child support request from a custodial parent is made to the Dept. of Child Support Services (DCSS) Custodial parent is receiving aid (a.k.a. welfare) for child Custodial person other than parent receives aid for child Child is in foster care after removal from one or both parents (e.g. can be a placement with a relative)

12 A threshold consideration before support can be ordered Parentage determinations can get complicated, but generally Marital presumption of parentage (FC 7540) Notwithstanding FC 7540, if blood tests performed, the question of parentage shall be resolved accordingly (FC 7541) Request must be within two years of birth of child

13 Under FC 7573, parentage established through a Voluntary Declaration of Paternity A VDOP has the force of a legal judgment Signed in the hospital when child is born Father s name on a birth certificate is NOT a judgment of paternity Parentage also established through Uniform Parentage Act Judgment through Family Court (Confidential Paternity or CP case) Juvenile Court Judgment Child Support Agency case with judgment

14 A complex calculation that includes variables such as each parent s income available for support; each parent s tax status; and the amount of visitation time (%) each parent has A free version of the guideline calculator is available to the public at hildsupport/tabid/114/default.aspx

15 What is income available for child support? Salaries and wages; business income; bonuses and commissions; rents and royalties; dividends and interests; pensions and annuities; worker s comp: unemployment compensation; disability and social security What s income not available for child support? New spouse s income (though this does affect payor parent s tax status) Child support received Needs-based public assistance

16 Unemployment does not relieve you of your legal duty to support your children A court can consider factors including Age, profession/occupation, background, work experience, qualifications Willingness to work (as shown by good faith efforts to find work) Opportunity to work Many parents are given work efforts orders Income may be imputed to them even if they have not found work

17 If client has been served papers regarding support Advise the client go promptly to the court s self help clinic at 99 Notre Dame Avenue for help filing and properly serving an answer Generally parentage papers have a 30 day deadline. Failing to reply can mean parentage established by default Client has form FL-600 (Summons and Complaint) for a governmental case Client has forms FL-200 and FL-210 (Petition and Summons) for a CP case

18 If client is seeking child support, a really good referral is to go to the Department of Child Support Services to open their case See DCSS is neutral they help parents in a lot of ways Open CS case Establish paternity Modify CS orders Enforce court orders for child support many techniques to enforce! Client can also do RFO (Request for Order) if married and Petition to Establish Parental Relationship if unmarried In both cases, Family Court Clinic can help them start a case

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20 Two parents putting a structure around the parent-child relationship is a parenting plan You can get there by agreement of the parents Informal unwritten agreement of parents; not an order Mediated agreement of the parents using Court mediation You can get there by litigation A parent files a motion and the judge ultimately decides You can get there after a custody evaluation A complex investigation that recommends a plan; occurs when not enough info for judge to discern best interests It s all about best interests of the child

21 Custody Sole or joint legal custody (decision-making) Sole or joint physical custody (residence) Visitation Can be called timeshare; means who has responsibility for child during specified times A parent s access to child may be supervised professional vs. non-professional Other provisions of a parenting plan How to exchange the child; how to make decisions about the child; travel with the child; how to conduct yourself when caring for the child or when interacting with each other; and more

22 Under the law, DV is detrimental to children Not in their best interests So a legal finding of DV will implicate child custody decisions made by a court A parent found to have perpetrated DV will be presumed to be an unfit parent who should not have sole or joint legal or physical custody (FC 3044) Finding can be based on criminal conviction or judicial finding of abuse, e.g. in a DV restraining order matter The presumption against custody is rebuttable A parent may be able to show they are now more fit and it would be in their children s interests to share custody

23 May depend on where the case is Parents have no parenting plan at all no case yet Such as the family that just split up Or the parties who just had a baby Or one parent has bee out of the picture but now they are back Parents have an informal plan that was never reduced to a writing or order no case yet Parent has a court order but wants it changed existing court case

24 Many ways to put custody at issue Request custody orders within your divorce or legal separation case Request custody orders in a custody only case Request for Order (RFO) (FL-300) Petition for custody and child support (FL-260) Request custody orders in a DVPA (Domestic Violence Prevention Act) application Form DV-100

25 Many ways to put custody at issue Request custody orders within a parentage (CP) case Request custody orders within a Petition for Custody and Support (FL-260) Within a DVPA (Domestic Violence Prevention Act) application (DV-100) It is generally good advice for an unmarried DV victim to also open a CP case for parentage determination at same time as DV request, but it is up to them Filing fee for parentage is several hundred dollars (though fee waivers are available) Possible for parties to stipulate to parentage within DVPA case

26 If client wants custody orders or has been served papers regarding custody Advise the client go to the court s self help clinic at 99 Notre Dame Avenue for help Obtain instructions and forms Obtain in-person help on starting a custody case or responding to a custody case filed by the other parent, including how to file and how to properly serve papers If DV is an issue along with custody Refer victim to a DV agency for help requesting DVPA orders (more on DV later)

27 They should be aware the court requires parents to participate in mediation first A free service offered by the court and performed by trained mediators Must attend a mandatory 2 hour Orientation class first Mediation is often successful at helping many parents construct a parenting plan that is in their children s best interests Required even if DV or restraining order exists Parents mediate in separate rooms

28 Prepare them for the mediation process Suggest they think about the child s needs for consistency, stability, safety, preserving healthy relationships and contact with both parents; also logistics like transportation Suggest they put a preliminary plan together For each provision they request, be able to justify What I want; Why I want it; Why it is good for my child Refer them to Kids, Court and You handbook

29 If mediation fails, temporary orders stay in place. Next steps: They may have to attend a Judicial Custody Conference (JCC) in front of the Judge, or They may have a hearing date set Conference versus hearing Result of JCC might be new agreement if parents agree, or another JCC, or a hearing date set, or order to custody evaluation Result of hearing is judge makes an order

30 Each parent should complete, file and serve their JCC statement Local form FM-1016 This form gives the judge info on the areas of disagreement, how far apart you are, current schedule and each parent s desired schedule Plus other important info (changes; police involvement or mental health intervention) Form can help the Conference be productive; judge will try hard to help parents settle

31 If you are the petitioning parent who started the case, you will have put your reasons for your custody request in your moving papers If you are the responding parent, you must answer by filing and serving a response where you put in writing your reasons for your opposition to what the other parent wants Judge will read both sides before a hearing

32 Be prepared Bring copies of your pleadings, plus 3 copies of any evidence (report cards, day care sign in sheets, etc.) Be respectful Don t interrupt or argue with the opposing side or the judge. Wait for the judge to ask you a question; they will listen to both sides! Keep focused on what is best for your children and why it is best for them This is hard when parents are mad at each other. Courts want to see you can keep conflict away from kids and acknowledge the role of the other parent in kid s life

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34 Divorce legally ends a marriage or domestic partnership Results in a judgment including orders for all other relevant issues including property division, child custody, child support, spousal support, attorney fees, etc. Returns parties to the status of unmarried persons Legal separation ends a marital or DP relationship May include all of the above in a judgment of legal separation except your status is still married or domestic partner So you cannot marry or enter into a DP with someone else Parties may choose legal sep for reason of religion and custom, or keeping a spouse on health insurance Nullity (or annulment) quite rare

35 Residency requirements Either you or your spouse must have lived in CA for the last 6 months, AND the county where you plan to file the divorce for the last 3 months. Can file for legal sep as long as 1 party lives in CA; can amend to divorce as soon as residency requirements are met in CA Grounds for divorce Irreconcilable differences Consent or agreement is not required Only one party has to want it; default judgments quite common However, if one party requests a legal separation, the responding party can convert that case into a divorce See for how to start a divorce case, including filing and serving

36 Each party MUST complete a preliminary declaration of disclosure (PDD) that gives their husband or wife information about income, expenses, assets they own and debts they owe PDD must be provided even if parties do not own anything or owe any money PDD is actually 2 forms and Income and Expense declaration and a Schedule of Assets and Debts Married parties owe a fiduciary duty must disclose everything! Parties must make a second, final disclosure prior to getting the judgment or both parties must agree to waive the final disclosure.

37 California is a community property state. Under FC 760, Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property real or personal this includes real property, personal property; bank accounts; retirement accounts; stocks; certain insurance policies with cash value; vacation pay that can be taken as cash wherever situated property can be located anywhere if acquired while parties lived here by a married person either H or W or both can acquire. If H opens separate bank account in his name and deposits salary during marriage, that is still CP. CP means subject to equal (50/50) division in the divorce.

38 Under FC 770, SP includes All property owned by the person and brought into the marriage All property acquired by the person during marriage by gift, bequest, devise or descent All property that is produced by SP (e.g. rents, issues, profits) Acquired after date of separation (see FC 771)

39 Either party can encumber the community with debt If debt was incurred prior to marriage it is generally assigned to the person who incurred it If debt is acquired during the marriage for a community purpose, it is subject to equal division between the parties If debt is acquired during the marriage for a non-community purpose, this should be assigned to the person who incurred it I had no idea husband incurred these debts for his girlfriend s apartment! If wife finds out husband got a credit card in her name without telling her, that s identity theft

40 An easier way for some couples to end their marriage or registered domestic partnership Must meet requirements: Less than 5 years from date of marriage/rdp to date of separation and parties have no children together Own no real property together No more than $6K in community debt and no more than $40K in community property acquired during marriage or DP Don t include car loans or cars as asset Neither has separate property worth more than $40K Again, don t include cars Agree neither will ever get spousal support

41 Many people start a divorce case but do not take it all the way through to a judgment This may lead them to think they are divorced when they are not and marry someone else! The Court has self help information at How to obtain a divorce by default (when Respondent was served but never filed a Response) How to obtain a divorce by written agreement (when Respondent has filed a Response and you agree)

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44 What is domestic violence Mental health definition and legal definition What legal relief is available for DV is available in Family Court? Common crossover issues Need for referrals to resources and safety planning DV can be lethal! DV dynamics often play out in the court systems

45 Mental health definition Deliberate use of emotional, psychological, physical and sexual abuse in adult or teen relationships to exert power and control over the other person. Common in intimate relationships but this is not a pre-requisite. Generally an escalating pattern Statutory definitions Penal Code Family Code sec and 6320 There are significant differences between the Criminal Law and Family Law definitions of abuse 8/12/

46 Penal Code (a) "Abuse" means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another. (b) "Domestic violence" means abuse committed against an adult or a minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship. 8/12/

47 Family Code 6203 "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 /12/

48 Family Code 6320 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, 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. 8/12/

49 Types of orders Burden of proof Available relief Specific issues Mutual orders Findings Vacating/modifying/renewing orders 8/12/

50 Per FC 6211, abuse against: Spouse or former spouse; Cohabitant/former cohabitant; Past or present dating/engagement relationship; Parties have child(ren) together; Child of a party; Consanguinity or affinity to 2nd degree (parents, g parents, siblings, children) 8/12/

51 Residence exclusion orders require petitioning party to show They have right to possession of the premises under color of law; The excluded party has assaulted or threatened to assault; and Physical or emotional harm would result 8/12/

52 Family Code An order may be issued under this part, with or without notice, to restrain any person for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved, if an affidavit or, if necessary, an affidavit and any additional information provided to the court pursuant to Section 6306, shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse. 8/12/

53 Family Code An order may be issued under this part, with or without notice, to restrain any person for the purpose of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved, if an affidavit or, if necessary, an affidavit and any additional information provided to the court pursuant to Section 6306, shows, to the satisfaction of the court, reasonable proof of a past act or acts of abuse. 8/12/

54 At the TRO stage (ex parte) lasts about 3 weeks Conduct, stay away, kick out, record, no guns, temporary custody After notice and a hearing, can last up to 5 years Conduct, stay away, record communications, no guns, temporary custody Support (child + spousal) Restitution Batterer s intervention Plus other orders necessary 8/12/

55 If a client you advise is protected by or restrained by a permanent DVPA order, they should know Order may be renewed, modified or even terminated pursuant to FC 6345 A court may issue mutual orders so long as both parties supplied written evidence of abuse and court made specific findings that both were abusive

56 Who is your client? Your client may be the victim, or may be the alleged or known perpetrator, or may be the alleged perpetrator who is really the true victims Provide victims with referrals to DV agencies who can assist them with safety plans Provide alleged or known abusers with advice regarding compliance with orders Provide both with referral to Pro Bono Project s DVLSR program

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58 Court-based help Family Law Facilitator/Self-Help center Restraining Order Help Center Legal services help and more at Community-based DV resources In DV cases, refer victims for safety planning to an agency such as or But make sure they know when to call 911!

59 Julie Saffren, Esq. Vice chair, Santa Clara County DV Council Family Law attorney Lecturer, Santa Clara University School of Law P. O. Box 4179 Mountain View CA