RECENT CALIFORNIA LAW AFFECTS CHILD CUSTODY

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One of the newer laws that directly affects child custody in California is known as AB 458.  This 2011 piece of legislation amends one probate code and adds another to clarify a parent’s ability to petition for guardianship of his or her child.  AB 458 also establishes requirements for transferring a proceeding to another court in circumstances in which a proceeding that concerns custody or visitation of a minor is pending in one or more counties when a guardianship petition is filed.

In addition, AB 458 acts to clarify that a court in Probate Code related guardianship proceedings may not appoint the parents of a minor child as a guardian of the person of that child, except as specified in Probate Code §2105.  This section concerns the appointment of a custodial parent who is terminally ill as a joint guardian with another person nominated by that parent.

AB 458 establishes requirements for transferring a proceeding to another court in circumstances in which a proceeding that concerns custody or visitation of a minor child is already pending in one or more California counties when the guardianship petition is filed.  It also specifies circumstances under which the court in a guardianship proceeding would maintain exclusive jurisdiction to determine issues of custody or visitation.  The bill also requires the court in which a guardianship proceeding is filed to communicate with each court in which a custody or visitation proceeding is pending before making a determination on maintaining or transferring the guardianship proceeding.

SIGNED MARRIAGE LICENSE DOES NOT TERMINATE DOMESTIC PARTNERSHIP AGREEMENT

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An important California Appellate Court decision has come down recently regarding the termination of domestic partnership agreements.  In the case of Estate of Wilson (2012) 211 Cal.App.4th 1284, 150 Cal.Rptr.3d 699, the California Court of Appeal affirmed that domestic partners’ subsequent marriage does not invalidate their domestic partnership agreement.  The Court further ruled that the trial court in this case did not err in concluding that surviving spouse’s knowing waiver of right to inherit, which was included in the partnership agreement, prevented him from claiming spousal share as decedent’s pretermitted spouse.

In reaching their decision, the justices traced the history of California law regarding domestic partnerships and same-sex marriages.  In 2003, the Legislature enacted the Domestic Partnership Act, which gave to domestic partners substantially the same rights, benefits, and obligations that married people have, except for those that federal law, the California Constitution, or the initiative statutes reserve solely for married people.

The appellate panel also acknowledged that same-sex marriages were maintained as valid in Strauss v. Horton (2009) 46 Cal.4th 364, 93 Cal.Rptr.3d 591, even though the high court upheld Proposition 8, which limited valid marriages to those between heterosexual couples.  In the case at hand, the question was whether the couple’s marriage license invalidated their domestic partnership.

In reaching their conclusion in the case at hand, the justices determined that if domestic partners have the same rights and protections as married persons, their domestic partnership agreements should be entitled to the same treatment as the prenuptial agreements executed by married people under the Uniform Prenuptial Agreement Act.  In this case, the parties had a signed agreement that contained a specific waiver of the right to inherit each other’s property except through a living trust or will.  It also provided that the agreement could not be changed or terminated without a written instrument signed by both parties.

5 NEW LAWS AFFECTING FAMILY LAW IN CALIFORNIA

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The law is always changing.  It is an ever-growing morass of legalese and judicial compromise, morphing and oozing and touching every single person in its path.  Politicians love making new laws that deeply impact the lives of families on an everyday basis.  And California always seems to be in the lead in this way, always looking for new ways or angles that might legally favor one special interest over another.

Unfortunately, family law poses no exception to the rule of new legislation.  Several important new laws have been enacted in California over the past year that affect the players in the family law arena in major ways.

Five (5) of the more significant pieces of legislative development are:

1)      (AB 1349)  Legislation that amends Family Code §§7573, 7576, 7612, and 7613 to revise certain provisions regarding the effect of a voluntary declaration of paternity, particularly if a conflicting parentage presumption exists; the bill also permits a sperm donor to be treated as the natural father of a child under specified circumstances;

2)      (AB 458)  Legislation amending Probate Code §1514 and adding Probate Code §§2204-2205 to clarify a parent’s ability to petition for guardianship of his or her child, and establishes requirements for transferring a proceeding to another court in circumstances in which a proceeding that concerns custody or visitation of a minor is pending in one or more counties when a guardianship petition is filed;

3)      (SB 651)  Legislation amending Family Code §§ 297 and 2320, and adding Family Code §§ 297.1 and 298.7 to remove the requirement that domestic partners have a common residence to register; permits establishment of a confidential domestic partnership; and permits same-sex spouses who married in California to petition for dissolution in California without the parties meeting regular residency requirements if neither spouse resides in a jurisdiction that will dissolve the marriage;

4)      (AB 1067)  Legislation amending Code of Civil Procedure §1008 to provide that an order denying a motion for reconsideration is not separately appealable, but if the order that was the subject of the reconsideration motion is appealable, the denial of that motion is reviewable as part of an appeal from that order;

5)      (AB 454)  Legislation amending Code of Civil Procedure §§527.6, 527.8, and 527.85, Family Code §6345, and Welfare & Institutions Code §§213.5 and 15657.03 to require specified notice to a protected party of a proceeding to modify or terminate a protective order before its expiration when that proceeding is brought by someone other than the protected party.

MILITARY DEPLOYMENT SHOULD NOT DEPRIVE FATHER OF CHILD CUSTODY

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An important California Appeals Court case has recently been handed down regarding the restoration of child custody rights to a father who had been sent on deployment in Afghanistan.  The case, entitled In re Marriage of E.U. and J.E, was an appeal of a post-judgment order.

According to court documents, the case concerned the parents of a child, both of whom were in the military.  In 2001, the couple decided to pursue a divorce, and the parents were awarded joint custody, although Father was awarded primary custody per the original decision of the divorce court.

However, Father was eventually deployed to Afghanistan, and Mother took primary custody of the child per the original divorce decree.  When Father returned from deployment and requested to have primary custody restored per the original divorce decree, mother disagreed.  A court-appointed doctor decided that the child would be better suited by finishing the school year with Mother.

The appellate court decided the doctor should never have been appointed and that primary custody should revert to Father.  During this legal battle, the California Legislature passed a statue that provided for the return of primary custody to parents who are ordered to go on deployment.