DETERMINING LONG TERM SPOUSAL SUPPORT: STANDARD OF LIVING

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When it comes to long-term spousal support, Family Code § 4320 is the guiding light.  This is the section that lists the mandatory factors family law courts must consider when determining long-term spousal support.

Family law judges do not simply determine spousal support by reference to one factor or another.  They must weigh and apply all of the factors stated in Family Code § 4320.  Any spousal support order not reflecting a weighing of these statutory factors is subject to reversal for abuse of discretion.

Family Code § 4320(d), which considers: “The needs of each party based on the standard of living established during the marriage,” is probably the most indeterminate statutory factor the family law judges must weigh and apply in each case.

The case of Marriage of Smith (1990) 225 Cal.App.3d 469 supplies the generally accepted guidelines for marital standard of living.  It held the marital standard of living to mean:

“…the general station in life enjoyed by the parties during their marriage.  The Legislature did not intend it to be a precise mathematical calculation, but rather a general reference point for the trial court in deciding this issue.”

There are two general approaches to quantifying the marital standard of living.  They are:

  1. Expenditure based, and
  2. Income based.

The expenditure based approach considers all spending records (cash and credit) for the last few years of marriage and categorically summarizes the spending.

The income based approach requires relatively few documents and both its strengths and weaknesses are attributable to simplicity.  The income base approach summarizes historical tax returns and assumes that all after-tax dollars are subsequently consumed.  In other words, all available dollars are either spent, saved, or invested.

Based on the case of Marriage of Weinstein (1991) 4 Cal.App.4th 555, this approach is the preferred method when the parties lived beyond their means.  Or, in other words, when the marital standard of living was subsidized by credit.

OVA DONATING PARTNER HELD TO SAME “MOTHER” STATUS AS BIRTHING PARTNER

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In 2005 the California Supreme Court handed down a decision where a woman who donated ova to her same sex partner for in vitro fertilization, but waived rights to offspring, would actually be considered a mother to the resulting children as well.  The facts of the case, entitled K.M. v. E.G. (2005) 37 Cal.4th 130, 33 Cal.Rptr.3d 61, 117 P.3d 673, are as follows:

The two women began living together in a committed relationship in 1994.  They registered as domestic partners in San Francisco that same year.  One of the partners, E.G, who had been trying to become a single parent for many years, learned that she didn’t have sufficient ova to make in vitro fertilization possible.  When E.G.’s doctor suggested that her partner donate her ova, E.G. balked because their relationship was still relatively new.

Later, E.G. asked her partner to donate her ova, but only if the partner would “really be a donor,” meaning that E.G. would be the “mother of any child.”  Her partner agreed, and K.M. signed a consent form supplied by the fertility clinic.

The consent form stated that K.M. would waive any rights and relinquish any claim to the ova or any resulting offspring, which the recipient could regard as her own.  The form also specifically stated that the donor disclaimed and waived any rights in or to any child conceived with her eggs, along with the right to a relationship with, or inheritance from any such child.

Upon making the donation, the resulting embryos were implanted in E.G. in 1995.  E.G. subsequently became pregnant with twins, who were born later that year.  Over the next five years, the women and children lived together as a family.  Both K.M. and E.G. shared parental roles.  When their relationship ended in 2001, K.M. filed a petition to establish a parental relationship with the twins.

Upon hearing the petition, the trial court found K.M. had relinquished any claim to parentage by signing the donor consent form, and that the two women had an oral agreement that E.G. would be the twins’ sole parent.  The court determined K.M. lacked standing to petition for parentage, and her petition was denied.  On appeal, the First District affirmed, reasoning that K.M.’s status was similar to that of a sperm donor.

The California Supreme Court reversed.  The majority held that:

  1. Family Code § 7613(b), which states that a donor who provides semen to licensed physician or sperm bank for artificial insemination/in vitro fertilization of woman other than his wife is not treated in law as natural father of resulting child, does not apply where a woman donates ova to her same-sex partner in order to produce a child that will be raised in their joint home; and
  1. Both women are to be considered mothers of the twins by reason of K.M.’s donated ova and by reason of E.G having given birth.

The majority justices also concluded that K.M. could not waive her parental rights or her responsibility to support her children by signing the consent form or making an oral agreement.  This ruling is consistent with California family law courts that seek to shape the law around finding parents who are legally responsible for supporting their children, thereby removing this burden from the public.

CASE FOR BIOLOGICAL MOTHER BODES WELL FOR SAME-SEX COUPLES

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An important gay rights case has come down in Florida.  It involves a lesbian couple that lived together for eleven years, shared bank accounts and income, and raised a child, who is now eight.  A case based on some similar facts has already been decided in California.

The biological mother, who goes by the name of Tina, had her egg fertilized with donor sperm that was implanted into her partner’s womb.  But then their romance fell apart when the child was two.  And the Florida courts had to decide who would be the legal parent:  the biological mother or the birth mother who carried the unrelated child for nine months in her womb.

Initially, citing Florida law, the trial court summarily decided with Tina’s ex partner.  But on December 23rd of last year, a state appeals court rejected the law as antiquated and recognized both women as legal parents.  Citing the case as “unique,” the 5th District Court of Appeal ruled that both the U.S. and Florida constitutions trumped Florida’s law.

As it stands, the birth mother has asked for a stay of biological mom’s rights, and the case will most assuredly proceed to the Florida Supreme Court, and, quite possibly the U.S. Supreme Court.

The plight of both women and their young daughter highlights the murky laws that surround same-sex families, especially in states, such as Florida, that do not recognize gay marriage.  Although they acted to the world as a committed couple, one thing that might have helped Tina avoid giving rights to the non-biological mother was if she had first gone to a lawyer to get surrogacy paperwork.

In reaching its decision, the appellate court considered this to be a moral, ethical, and legal issue, and it recognized the intent of the parties to deliberately bring a child into the world and to raise her together.  The court ruled that the problem with the Florida law was that it provided no distinction between biological and birth mother and it had not caught up with science or the state of same-sex marriages.

A CHILD’S RIGHT TO PRIVACY

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Parents who have custody of their child have the right to make many important decisions regarding their child’s life and life plans.  But did you know that according to the California Family Code, there are many instances in which children have the legal authority to make important personal decisions without their parents’ consent?  Some of these circumstances include:

  • When a child is 12 or older and seeks medical treatment related to a drug or alcohol problem FC §6929b)
  • When a child is 12 or older and seeks medical treatment for rape.  A medical care professional, however, shall attempt to contact the minor’s parents or guardian, unless he or she reasonably believes the minor’s parents or guardian committed the sexual assault on the minor. (FC §§ 6927, 6928)
  • When a child is 12 or older and seeks medical treatment related to an infectious, contagious, or sexually transmitted disease. (FC § 6926)
  • When a child is seeking medical care related to the care and prevention of pregnancy.  This includes birth control information and devices, and (if the child is deemed sufficiently mature) abortion or any other care, short of sterilization.

Family Code § 6922 makes it easier for youngsters 15 years of age or older to obtain medical care when they show that they are living separate and apart from their parents and managing their own financial affairs.  And of course there’s Family Code § 7002 which dictates that married minors, or minors who have joined the military or have received a formal court decree acknowledging their emancipation, need not confer with their parents regarding any decisions whatsoever.

So if you have questions about your parental or child’s rights, don’t hesitate to contact an experienced family law attorney, one who can help you deal with the law and important decisions involving your family’s well being.

NEW BEGINNINGS FOR FAMILY: 2012

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It’s a new year during an amazing time.  Change is happening very rapidly, without and within, and if you’re not on board already, it’s now time.  There is no better time than right now, our most powerful moment, at all times.  Do what ever it is you can do to bring all good things to those you love most, and those you don’t even know, and do it all the time.  But most importantly, fill the stocking of family with all the brilliance the universe can and will provide.  Just put your thoughts, feelings, words, and actions behind it.  We at the Law Offices of Donna Santo wish you and your family a fantastic new year filled with Love, Peace, Joy and Blessings.

HAPPY NEW YEAR!  Happy 2012!!!