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Other Aspects of Family Law

In addition to divorce proceedings, California family law embraces an eclectic composite of issues and relationships.

IN ADDITION to divorce proceedings, California family law embraces an eclectic composite of issues and relationships, including:

Adoptions: Family law attorneys stress the importance of detailed paperwork in adoptions so that there can be no question who is responsible for a child’s well-being and support. Adoptions can be secured by nonrelatives, stepparents, grandparents or other relatives and same-sex couples.

Annulments: In California, a marriage or domestic partnership that is not legally valid can be annulled, or nullified, by the court. A marriage or domestic partnership can be declared void if one of the spouses or partners was underage or already married or in a registered partnership at the outset. A marriage or domestic partnership that is incestuous or bigamous is never valid in California. Annulments are extremely rare.

Child custody: In a divorce proceeding, custody refers to the responsibility of caring for children and planning their future. The court will determine the custodial rights of each spouse if the couple cannot agree on terms of custody, which include joint custody, sole physical custody with visitation rights, joint physical custody, sole legal custody or joint legal custody.

Child neglect/abuse: Parents and guardians can be charged with child neglect if they fail to provide the basics of food, clothing and shelter, as well as medical treatment and supervision for a child in their care. California law protects minors from physical, emotional and sexual abuse, as well as exploitation. Anyone who suspects a child is being abused is required by law to report the alleged abuse to authorities.

Child support: In family law, child support, also referred to as child maintenance, sets out a plan for periodic payments for the care of children in a marriage that has been terminated. In 1992, the California legislature adopted a specific formula to determine the amount of child support required. Determining factors include both parents’ incomes and the degree of physical responsibility for the child. The amount of child support is usually calculated by computer.

Division of property: In addition to the spouses’ house and furniture, property divisions in a divorce case can include stock options and portfolios, IRAs, Keogh accounts and retirement plans, summer homes, works of art, antiques and commercial property. In California, the law governing the division of property (and debts) changes with great frequency.

Domestic partnerships: California’s family law applies to registered domestic partners (same-sex couples and heterosexual couples in which one or both parties are at least 62 years old). All assets aquired after the partnership was recognized are equally owned community property. Termination of a domestic partnership is governed by the same legal process used to dissolve a marriage. The domestic partners are required to get divorced in court, where child custody and visitation issues are resolved. Like any married couple, one of the partners can be eligible to receive spousal support and child support, as determined by a family court judge.

Domestic violence: Family law specialists are trained to guide victims of domestic violence in finding appropriate programs and professionals, including psychologists, analysts and investigators. Victims of domestic violence frequently live with emotional and physical abuse, ongoing threats of force, intimidation and isolation.

Elder abuse: The elderly are among the most vulnerable members of society. They often become victims of abuse in the very environments that are intended to care for them and shield them from harm—nursing homes or the homes of caregivers, even close relatives. The abuse can take the form of neglect (malnourishment, dehydration or bed sores), physical assaults, financial fraud, mental abuse or psychological intimidation in which someone takes advantage of an elderly person’s fear or confusion. Under California law, people working with the elderly—eldercare workers and health practitioners, among others—are required to report suspected elder abuse. If the alleged abuse occurs in a long-term care facility, a law-enforcement agency must be notified. Suspected elder abuse occurring in other locations, including the home of a relative or other caregiver, must be reported to County Adult Protective Services. In California, failure to report suspected elder abuse is a misdemeanor punishable by six months in jail, a $1,000 fine or both.

Foster care: The California Family Code, which governs family law, stipulates that children in foster care should be placed with a relative, unless that placement would not be in the best interest of the child. In San Diego County, the majority of children who enter foster care are initially placed at the Polinsky Children’s Center, although some are placed directly with relatives.

Grandparent custody/visitation: In granting custody or visitation rights to a grandparent, the court must determine what is in the best interest of the child. A family law judge will grant visitation rights to a grandparent only if the parent they are related to has no legal custody of that child. In order to gain custody of a child, a grandparent is required to prove that it would be detrimental to the child if he or she were to live with either parent.

Guardianship/conservatorship: In California, a guardian is appointed by a family court judge to be responsible for a person under the age of 18. Guardians are usually appointed when a parent is terminally ill or unfit, or upon the death of both parents. Conservatorships usually apply to adults rather than children. If an adult is mentally disabled or deemed incompetent, a judge can appoint a conservator to manage that person’s affairs.

Mediation: In divorce proceedings, disputes over child custody can sometimes be settled through mediation. Family Court Services provides mediation in a private office with a court counselor. The mediation conference enables both parents to work toward a mutually acceptable agreement that is in the best interest of the child. Mediation is less expensive, and far less time-consuming, than litigation.

Minor’s counsel: Under the California Family Code, the court is authorized to appoint an attorney to represent a child in a so-called “high conflict” custody case. The minor’s counsel investigates contentions raised by the parents regarding what is in the best interest of the child. The Family Code defines the role of minor’s counsel as a gatherer of facts. The counsel has the authority to interview the child, review court files and records pertaining to the child and conduct appropriate investigations.

Palimony: Unmarried couples do not enjoy the rights and protections granted to their married counterparts, of course. However, in California and other states, the courts have granted that, in certain situations, an unmarried person may have a right to secure financial support from a former partner after their relationship ends. Such compensation falls under the misnomer “palimony,” in which judges have found that one partner promised to support the other in return for being taken care of while they lived together. The courts have treated these arrangements as if the parties involved had a contract.

Paternity: Establishing paternity is the legal process identifying a child’s father. If a man can establish paternity, it gives him the legal right to make decisions regarding his child’s education, medical care and upbringing. On the other hand, if an alleged father begins to suspect that he has been supporting a child who is not biologically his, a DNA test can determine whether or not he has an obligation to that child. Establishing paternity also is crucial to a woman who is not married to the father of her child. Once paternity is determined, she and the child are entitled to receive child support and other benefits from the father. There is no statute of limitations for establishing paternity in California.

Premarital agreements: A premarital, or pre­nup­tial, agreement is a legal contract created by two people who plan to marry. The agreement usually lists all the property each person owns, as well as their debts. Premarital contracts specify how property will be divided and whether spousal support will be paid in the event of the couple’s divorce. In addition, it can lay out in detail the couple’s wishes regarding distribution of property after one of them dies.

Restraining orders: In cases of actual or threatened domestic abuse, the California Family Code, under the Domestic Violence Prevention Act, sets out specific protections for victims, including the use of restraining orders, or protective orders. A restraining order is issued by the court to protect a person from physical harm or the threat of harm. It can be issued against a family member, a current or former spouse, a housemate or former love interest. A restraining order can bar a person from making any contact with the victim.

Spousal support: In a divorce proceeding, the California Family Code specifies the factors a judge is to consider in determining the amount and duration of spousal support. The factors include the spouses’ prior living standard, the length of the marriage, the extent to which one spouse contributed to the education and career of the other (paying) spouse, the number of children living at home, and the employment prospects facing the spouse seeking financial support.

Surrogacy: A form of assisted reproduction, surrogacy is an arrangement in which a woman agrees to become pregnant, with the intention of relinquishing the child for others to raise. She may be the child’s genetic mother, or she may be implanted with another woman’s fertilized egg. In some cases, surrogacy is the only available option for a couple seeking to have a child who is biologically related to them. In California, the courts have extended family law statutes to protect all parties to surrogacy and egg-donation agreements. Under state law, prospective parents, surrogates and egg donors are assured that their intentions, expressed in legally binding documents, will be upheld.

Click here to read the April 2008 feature article The Landscape of Family Law, by Bob Rowland

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