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Husbands and wives, and parents and children, have certain legally defined rights and responsibilities toward one another. This chapter discusses the legal rights of people within such relationships. Topics discussed include: marriage, cohabitation, divorce, surrogate parenting, and responsibility for children, including adopted children and children of unmarried parents.
Most of the legal rights described in this chapter can be found in the Family Code, section 1 et seq. Other noteworthy codes, cases and opinions of the Attorney General will be cited, where relevant.
Marriage creates legal rights and duties between husband and wife. Marriage affects rights of support, property, taxes, inheritance, and other matters discussed in this chapter. According to California law, through marriage, "husbands and wives contract toward each other obligations of mutual respect, fidelity, and support." (Fam. Code, § 720.)
There are a number of requirements that must be met before two persons can legally be married.
Usually, both parties to a marriage must be consenting adults, 18 or older. However, if you are not yet 18, you may marry with the written consent of at least one of your parents or your guardian (if you have one), and a court order granting judicial permission for the union. (Fam. Code, §§ 301-303.) The court may require those who are not of legal age to participate in premarital counseling. (Fam. Code, § 304.)
A marriage license is usually required in order to marry. (Fam. Code, § 350.)
There are procedures for marriage with a confidential license for adults who have been living together, but the confidential marriage license is only valid for 90 days from its issuance and only within the county where it is issued. (Fam. Code, §§ 500-511.)
Same-sex couples, as well as heterosexual couples, have a state constitutional right to marry in California. (In re Marriage Cases (2008) 43 Cal.4th 757, 829.) Further, Family Code sections 300 and 308.5, which provide that marriage can only be between a man and a woman, are unconstitutional under the California Constitution. (Ibid.) However, same-sex marriages performed in California are not recognized by the federal government, due to the Defense of Marriage Act (DOMA). That federal law, which is codified at 1 U.S.C. § 7 and 28 U.S.C. § 1738C, provides that a marriage is only between a man and a women and therefore denies federal benefits to same sex-couples. DOMA also allows other states, territories or possessions of the United States or Indian Tribes to not give effect to same-sex marriages performed in California.
Cohabitating adults of the same sex, or couples of a different sex where at least one person is 62 years old, may establish a domestic partnership in lieu of marrying by registering with California’s domestic partnership registry. (Fam. Code, § 297 et seq. [California’s Domestic Partner Rights and Responsibilities Act of 2003].)
Finally, a marriage must be solemnized by an authorized person. A legal marriage may be performed by a judge or a retired judge; a commissioner or retired commissioner of civil marriages; a commissioner or retired commissioner or assistant commissioner of a court of record or justice court in this state; any judge or magistrate of the United States; any priest, minister or rabbi of any religious denomination; and officials of certain nonprofit religious institutions licensed by a county. The person conducting the ceremony must be at least 18 years old. (Fam. Code, § 400-402.)
You do not have to change your name when you get married. Once you are married, you may keep your birth (maiden) name, take your spouses's name, or hyphenate your own birth name with your spouse's name. You are not required to take your spouse's last name upon marriage. In a proceeding for dissolution or nullity of marriage, the court, upon request of a party, shall restore the birth name or former name of that party. (Code of Civ. Proc., § 1279.6 and Fam. Code, §§ 2080-2082.)
Upon marriage, each spouse enters into an agreement to support the other. Each spouse is committed to using whatever resources are available for this purpose. If there is not adequate community property to provide support for your spouse, you are expected to expend your own separate property to support your spouse. (Fam. Code, § 4301.)
California has community property laws. If you lived in California during your marriage, everything you or your spouse own is either "community" or "separate" property. Unless you and your spouse agree otherwise, all property in or out of the state that is acquired by you and your spouse through either of your labor or skills during the marriage is community property. Each spouse owns one-half of all community property. This is true even if only one spouse worked outside the home during the marriage and/or the property is held in the name of only one spouse. If you were married in a state that does not have community property laws and while married, you and your spouse purchased a home or other property in that state before moving to California, the house will be treated as community property when you get a marriage dissolution in California, if it was bought with the earnings of either or both spouses during the marriage. This kind of property is called "quasi-community property." (Fam. Code, § 125.)
During marriage, both husband and wife have an equal interest in all of their community property. Each spouse has the right to manage and control the community property for the good of the family. This does not mean, however, that either you or your spouse may sell, lease for longer than one year, or give away real estate or personal property acquired during your marriage without written consent or the signature of the other, with certain exceptions. "Real estate" includes a home, land, or rental property. "Personal property" includes furniture, furnishings or fittings of the home, clothing, cars, money, and other personal goods. Each spouse owes a duty of good faith in dealing with the community property. This fiduciary duty, which continues until a petition for dissolution is dismissed, a judgment is entered or the court makes further orders, or the death of a spouse, includes the obligation to make a full disclosure to the other spouse of the existence and extent of all community assets and debts. This obligation can be enforced through a court proceeding brought within three years of the date a petitioning spouse had actual knowledge that the event for which the remedy is sought occurred, although these time limits do not apply where a spouse has died or there is an action for legal separation, dissolution or nullification of a marriage. (Fam. Code, §§ 1100, 1101 and 1102.)
If you or your spouse manage a business or an interest in a business that is substantially community property, the spouse who manages the business or interest has primary, not sole, control or management of the business. The managing spouse must give the other spouse prior written notice of any major transactions. While the failure to give notice will not invalidate the transaction, the adversely-affected spouse may institute legal action to rectify any damage done to his or her interest in the business. (Fam. Code, §§ 1100 and 1101.)
Some community property can be protected from the debts of your spouse. Under California "homestead" laws, both husband and wife may declare a house and land as their homestead and thereby protect the house and land against claims of creditors. The law limits the amount of property that is protected by homestead rights. For information about declaring your property as a homestead, contact the office of the county recorder in the county in which the property is located or contact an attorney. (Code Civ. Proc., § 704.710 et seq.)
Separate property includes all property that you or your spouse owned before you married. Separate property can also include certain gifts and any inheritance or the rents or profits therefrom that one of you received either before or during marriage. Separate property can also include earnings of you or your spouse, if you have entered into a premarital or marital property agreement that the earnings are to be separate property and not community property. (Fam. Code, §§ 770 and 1500.)
Any earnings made by you or minor children living with you or in your custody, after you and your spouse are separated, are your separate property. (Fam. Code, §§ 771 and 772.)
It is possible for separate property to become community property. For example, if you put separate property money that you inherited in a savings account with mostly community property money, it may become community property. Or, if the married couple lives in and pays taxes or mortgage on a house that was the separate property of one of the spouses, the community may acquire an interest in the house. Married couples by written agreement or transfer, with or without consideration, may change the character of property from separate to community. (Fam. Code, §§ 850 and 853.)
"Joint tenancy" is one way, beside community property, that two or more persons may own property together. Under "joint tenancy," each owner has an undivided joint ownership in the property with a "right of survivorship." When one owner dies, the entire property passes to the other owner. For example, if you own property in joint tenancy with your husband, you will not be able to leave any part of that property to your children or anyone else. Upon your death, your interest in the property would pass automatically to your husband. (Civ. Code, § 683 and Fam. Code, § 750.)
The use of joint tenancy ownership may reduce the need for probate of an estate. (Prob. Code, § 6600(b)(1).) However, it will not eliminate the obligation to pay inheritance and estate taxes. (Rev. & Tax Code, § 13302 et seq.) "Probate" is the required court proceeding following a property owner's death. Through probate, the decedent's property is given to the remaining family members or friends according to the will and to state laws. Probate can be costly and time-consuming. If you have substantial assets, it is advisable that you contact a lawyer or tax accountant. (See Chapter Nine, Directory of Services, for the telephone numbers of Lawyer Referral Services.)
"Tenancy in common" is the third way that two or more people may own property together. Under "tenancy in common," each owner holds an equal interest as his or her separate property. If a married couple holds property as tenants in common, either spouse may sell or give away his/her interest in the property. Under both "community property" and "tenants in common" methods of ownership, when one owner dies, his/her share of the property will pass to other persons according to the directions in the deceased owner's will or, if there is not a will, to the deceased owner's descendants following the state law that applies if the deceased did not leave a will. (Civ. Code, §§ 685-686 and Fam. Code, § 750.)
A lawyer, banker or other financial advisor can best explain to you the advantages and problems of owning property in each of these ways.
There are three types of enforceable agreements within marriage -- pre-marital agreements, agreements within marriage and agreements with other persons.
Two people planning to marry may enter into an agreement before marriage ("prenuptial" or premarital agreement) concerning their future rights and obligations after marriage to property, earnings and other assets. So long as the prenuptial agreement does not promote dissolution of the future marriage, or vary the personal duties and obligations resulting from the marriage contract itself, it may be enforced in a court. Such an agreement should be consented to and signed by both parties, and may be recorded in the appropriate county offices. (Fam. Code, § 1600 et seq.; In re Marriage of Higgason (1973) 10 Cal.3d 476, 485.) The parties cannot contract away one party's obligation to pay child support. (Plumer v. Superior Court (1958) 50 Cal.2d 631, 637.)(1)
During marriage, a couple may also make an enforceable agreement covering rights to property and support. A written agreement is the easiest agreement to enforce. However, a written agreement is not required, except for a transmutation, or change in the character of property. (Fam. Code, § 852.) Nonetheless, there must be an actual agreement, that is, a meeting of the minds between husband and wife. This may be proven in court by the way the couple conducted themselves or by testimony from persons who were told about the agreement. (Fam. Code, § 721.)
Agreements made by either spouse with other persons during the marriage may be paid for out of the community property. Some types of agreements, such as sale or purchase of real property, may require the signature of both spouses. However, there are many kinds of agreements that either spouse can enter into without the signature or consent of the other spouse. (Fam. Code, §§ 721, 910, 911, and 1102.)
When you are married, you may file a "joint" tax return with your spouse, or a "married filing separate" tax return. State and federal tax laws are complicated. Various tax decisions will be of special importance to you because you are married. Tax issues of particular concern to married couples include "joint" and "separate" filing (Rev. & Tax Code, §§ 17045 and 18521), inheritance and estate tax planning, homestead rights, and your possible liability for tax fraud committed by your spouse. (Rev. & Tax Code, § 18531.) You may wish to seek advice on these and other tax matters from your local office of the California Franchise Tax Board, the Internal Revenue Service, or from a tax specialist or private attorney.
When you are married, all parental authority over you ceases, even if you are under 18. (Fam. Code, § 7505.)
In most civil proceedings brought by or against your spouse, you have a right not to testify. However, in some types of cases, such as certain criminal cases, juvenile court cases and commitment procedures, you may lawfully be asked to testify against your spouse. For example, a wife may also be required to testify against her husband if he beats or rapes her. (Evid. Code, § 970 et seq.)
Either spouse may sue the other for damages from personal injuries. If your claim is successful, any money or property your husband pays you must first be paid from his separate property, unless the injured spouse gives written consent to the use of community property for this purpose. After that fund is exhausted, he can use community property to satisfy the judgment. Whatever you receive is considered your separate property. (Fam. Code, §§ 782 and 781.)
California law recognizes and prohibits marital rape. If your spouse has raped you, you have the right to seek a legal remedy. (Pen. Code, § 262.) (See Chapter Eight for details.)
Your will is your legal instruction indicating who will receive your property after you die. Under California law, each spouse has the power to leave separate property and one-half of community property to any person, according to his or her will. A will can be a formal document drawn up by an attorney, which is signed by the testator (the person making the will) or by a conservator or by someone in the presence of and acting by the testator's direction, and signed by at least two witnesses, who should be disinterested parties. (Prob. Code, §§ 6110 and 6112.)
Equally valid under California law is a "holographic will." This is simply a handwritten statement of how you want your property disposed of after your death. It must be dated (day-month-year), signed, and written entirely in your own hand, except that the statement of testamentary intent can be part of a commercially-printed will form. (Prob. Code, § 6111.) If you leave no will or an invalid written will, state law will determine who receives your property. (Prob. Code, § 6400 et seq.)
A wife or husband is entitled to at least one-half of the community property upon the death of the other spouse. The power of the deceased spouse to dispose of community property and quasi-community property to other persons by a will is limited to half of the property. The deceased spouse may, of course, specify in the will that all community and quasi-community property is to go to the surviving spouse. If the deceased left no will, the surviving spouse will receive all of the community and quasi-community property. (Prob. Code, §§ 6101 and 6401.)
In most cases, it may be necessary to go to court to confirm title to community property left by a deceased spouse. These court procedures are simplified in cases involving only community property left to the surviving spouse, and do not require probate administration of that portion of the estate. (Prob. Code, § 13650 et seq.)
If a husband or wife died leaving separate property but no will, the separate property will be distributed under law between the surviving spouse and the deceased's children (half to the spouse and the remaining half divided equally among the children.) If there are no surviving offspring, then the property will be distributed among the surviving spouse and the deceased's lineal descendants, parents, siblings and/or nieces or nephews of deceased siblings. (Prob. Code, § 6401.)
You can get support payments while your spouse's estate is being settled. If you were dependent on your spouse for all or part of your support, the court has discretion to grant you, your children, and parents or adult children of the decedent who were dependents, an allowance while the estate is being settled. (Prob. Code, §§ 6540-6545.) Also, you should contact your local Social Security office to determine your eligibility for survivor's benefits.
Because of the technical legal requirements under property law and probate law, it is recommended that a person with questions regarding inheritance seek help from a lawyer or tax accountant. In addition to questions concerning legal title to property, there may be problems concerning payment of debts (Prob. Code, § 11400 et seq.), payment of inheritance taxes, and other matters to be resolved before confirmation of title to property in the surviving spouse.
In California, there are four ways to end a marriage (or some of the legal consequences of a marriage) between two people. The first is commonly called divorce; the legal term is "dissolution of marriage." The second is through a legal separation, which ends some of the legal consequences of the marriage. The third is an annulment; the legal term is a "nullity." Finally, a few types of marriages can be ended by having them declared void. Marriages which are considered void include bigamous and incestuous marriages.
In California, the law provides for "no fault" divorce (called dissolution of marriage). This means that to dissolve your marriage and restore you to the state of an unmarried person, it is not necessary to prove that you or your spouse have done something wrong. (Fam. Code, § 2300.) It is only necessary to convince the court that you and your husband have "irreconcilable differences." (Fam. Code, §§ 2310 and 2311.) The other ground for dissolution in California is incurable insanity of one spouse. (Fam. Code, § 2312.) Generally, the only time specific acts of wrongdoing in the marriage are pertinent is when the acts are relevant to the award of custody of the children. (Fam. Code, § 2335.)
"Irreconcilable differences" mean that there has been a serious breakdown in the marriage and that there are convincing reasons why the marriage should not continue. As a practical matter, if you and your spouse agree that there are irreconcilable differences and that your marriage cannot continue, the court will usually grant the dissolution without question. (Fam. Code, § 2333.) However, if it appears to the court that you and your spouse may get back together again, the court may delay the dissolution proceedings to allow you time to reconcile, although this does not usually happen. During the period of the continuance, the court may make orders for the support and maintenance of the parties, the custody of the minor children of the marriage, the support of children for whom support may be ordered, attorneys' fees, and for the preservation of the property of the parties. (Fam. Code, § 2334.)
Incurable insanity of one of the spouses at the time the petition was filed and continuing to the present as a ground for dissolution must be proved by competent medical or psychiatric testimony. (Fam. Code, § 2312.) Divorce on the grounds of incurable insanity does not relieve the spouse from an obligation to support the insane spouse. (Fam. Code, § 2313.) If the mentally ill spouse does not have a guardian or conservator, the court will appoint one for him or her. (Fam. Code, § 2332.)
To get a divorce in California, you or your spouse must have lived in California for at least six months and in the county where you filed the petition for dissolution for at least the last three months. (Fam. Code, § 2320.) A proceeding for legal separation can be converted into a proceeding for dissolution once the residency requirements are met. (Fam. Code, § 2321.)
A dissolution proceeding is begun when either spouse files a petition for dissolution with the superior court and serves a copy of the petition and summons on the other spouse. (Fam. Code, §§ 2330 and 2331.) The court can grant a divorce decree by default, but must require proof of the grounds alleged, either before the court or by affidavit. (Fam. Code, § 2336.) In all cases where there are minor children of the parties, the offer of proof shall include an estimate of the monthly gross income of the parties (or a statement of why the declarant or affiant has no knowledge of this) and if there is a community estate, an estimate of the assets and debts to be distributed to each party. If the proof is by affidavit, the personal appearance of the affiant is only required under certain circumstances. Where a judgment of dissolution is to be granted upon the default of one of the parties, the signature of the spouse who has defaulted shall be notarized; the court clerk shall give notice of entry of judgment to the attorney of each party or to the party, if unrepresented; and the party submitting the judgment shall provide the court clerk with a stamped addressed envelope for notifying the other party or his/her attorney. (Fam. Code, § 2338.5.)
If you file for dissolution, you must attend a court hearing. Your spouse does not have to attend the court hearing if you and your spouse agree to the divorce and to any property settlement, spousal support, child custody, and child support matters. In that case, the dissolution is considered to be uncontested. If your spouse objects to the dissolution, but fails to show up at the hearing, the court will consider your divorce uncontested. (Fam. Code, § 2336.)
The amount of time you will spend in court depends on a number of factors. Hearings for uncontested dissolutions do not take very long. However, a hearing for a contested dissolution may take hours, days or even longer.
Your dissolution can become final six months after your spouse is served with papers declaring your intent to divorce him or her. However, a dissolution is not automatically final at the end of six months. You or your lawyer must ask the court for a "final judgment." The final judgment is a paper that must be signed by the judge and entered into the official court records by the county clerk before your marriage can be dissolved. You cannot legally remarry until the date set forth in your final judgment for when it becomes final. If an appeal is taken from the judgment, that may also prevent you from remarrying under certain circumstances. (Fam. Code, §§ 2201, 2338 and 2339-2344.)
You can request by noticed motion that the court sever and grant an early and separate trial on the issue of the dissolution of the status of the marriage, apart from other issues. This is called a "bifurcation." The court may impose upon a party any of the following conditions: 1) an obligation to indemnify and hold the other party harmless from certain taxes, reassessments, interest, penalties, the termination of a probate homestead, loss of rights to a probate family allowance, loss of rights to pension benefits, elections or survivors' benefits, or loss of rights to social security benefits, and 2) an obligation to maintain existing health and medical insurance coverage for the other party and dependent minor children. Prior to entry of judgment terminating the status of the marriage, the party's retirement or pension plan should be joined as a party or if applicable, a qualified domestic relations order, or QUADRO, shall be entered with reference to a defined benefit or similar plan. The judgment shall expressly reserve jurisdiction for later determination of all other pending issues. (Fam. Code, § 2337.)
There is sometimes a simpler way to obtain a dissolution. It is called a "summary dissolution." A "summary dissolution" makes it unnecessary to appear in court, to serve a summons, or to file an interlocutory judgment. This procedure may be used only if all of the following circumstances exist:
If all of the above requirements are met, the parties may file a joint petition (signed under oath by both husband and wife) for summary dissolution. If you would like the court to issue an order that restores your maiden name(2), you may so state on the joint petition for summary dissolution. (Fam. Code, §§ 2400-2401; 2080-2082.) Six months after the filing of such a joint petition, the court may issue a final judgment dissolving the marriage. (Fam. Code, § 2403.)
Either party has the right to revoke the petition for summary dissolution at any time before a request for final judgment is made. You will remain married until one of you files for and obtains a final judgment of dissolution. If either of you revokes the petition for summary dissolution before the final judgment is entered, the dissolution process will be terminated until a new petition is filed. (Fam. Code, § 2402.)
A divorce obtained in another jurisdiction shall not be valid in California if both parties were domiciled here at the time the proceeding for divorce was commenced. (Fam. Code, § 2091.)
California has community property laws. This means that generally one-half of all community property belongs to you and one half belongs to your spouse when you divorce. Community property generally includes both of your earnings or anything you purchased with or saved from your earnings while you were married and living together. (Fam. Code, §§ 2550, 760 and 803.)
The valuation date for assets will usually be set by a court as near as practicable to the time of trial, unless, upon notice to the other party and for good cause shown, the court picks another date after separation and before trial in order to accomplish an equal division in an equitable manner. (Fam. Code, § 2552.)
The court may award a community asset to one party in order to effect a substantially equal division between the parties or in certain other circumstances. (Fam. Code, §§ 2601, 2603 and 2604.)
When you get a dissolution, you and your spouse each keep the separate property you own. Separate property includes real estate, money, furniture, or any other belongings that you or your spouse owned before marriage. It also includes certain gifts and inheritances you received before or during marriage. Separate property held in joint tenancy may be subject to the court's jurisdiction. (Fam. Code, §§ 770 and 2581.) A spouse is not entitled to reimbursement for contributions of separate property to the marital community that were made before 1984. (In re Marriage of Heikes (1995) 10 Cal.4th 1211.)
There can be many complications in deciding whether your possessions are separate or community property. A lawyer may help you resolve these questions and arrive at a proper settlement.
It is possible to alter the property rights of husband and wife by premarital or marital property agreement. (Fam. Code, §§ 721 and 1600 et seq.) If you had such an agreement, division of assets will normally be pursuant to that agreement. In transactions between themselves, spouses generally are obligated to use good faith and fair dealing, to provide each other with access to any relevant information and to provide an accounting of benefits and profits.
Community property money used for the education, training or repayment of education-related loans of one spouse, even while residents of other states, must ordinarily be repaid to the community property before a settlement of community property, if the contributions substantially enhanced the earning capacity of that spouse and if there is no express written agreement of the parties to the contrary. (Fam. Code, § 2641.) There is a rebuttable presumption that the community has not substantially benefitted from community contributions to the education and training made less than 10 years before the commencement of the proceeding and that it has substantially benefitted from such contributions made more than 10 years before the commencement of the proceedings. The reimbursement obligation can be modified if the education or training received by one party is offset by that received by the other, or if one party's need for support is reduced by the education and training received.
Any debts incurred before or during the marriage for the education or training of one spouse will be considered to be that spouse's separate property debt upon dissolution of the marriage. (Fam. Code, § 2641(b)(2).)
Except for education or training-related debts, debts that either you or your spouse acquired during marriage are community property debts. This includes credit card bills, even if the card is in your name only. Community property debts are divided equally, and usually valued as close to the separation date as possible, unless you and your spouse agree to an unequal division, or upon notice to the other party and for good cause shown, the court picks another date after separation and before trial in order to accomplish an equal division in an equitable manner. (Fam. Code, §§ 2551-2552 and 2620-2627.) To the extent community debts exceed total community and quasi-community assets, the excess of debt shall be assigned as the court deems equitable, taking into account factors such as the parties' relative ability to pay. (Fam. Code, § 2622.)
Money you owed before getting married is your separate property debt. Each of you is responsible for paying your separate property debts. (Fam. Code, § 2625.) Debts incurred by either spouse after the date of separation but before entry of judgment of dissolution of marriage or legal separation of the parties are treated as follows: 1) debts incurred for the common necessaries of life of either spouse or of children of the marriage for whom support may be ordered, in the absence of court order or written agreement, shall be confirmed to either spouse according to their needs and abilities to pay at the time the debt was incurred; 2) debt incurred by either spouse for nonnecessaries are considered separate debts. (Fam. Code, § 2623.) Debts incurred by either spouse after entry of a judgment of dissolution of marriage but before termination of the marital status or after entry of a judgment of legal separation shall be separate debts. (Fam. Code, § 2624.)
You and your spouse may own more community property than you realize. Many married couples own a home, furniture, appliances, and a car as community property. You and your spouse also may have cash in checking and savings accounts, stocks and bonds, pension and profit-sharing plans, life insurance policies, tax refunds, a vacation home, rental property, or a business--all of which can be community property. Even though each spouse usually keeps his or her clothing and jewelry, these belongings may also be community property.
Your lawyer can help you make sure that all belongings are properly listed as either community or separate property. For example, your lawyer can explain any rights you may have to your spouse's pension or profit-sharing plan, or retirement or other employee benefits. (Fam. Code, § 2610.)(3) (You are not entitled to a share of your spouse's Social Security payments; see In re Marriage of Nizenkoff (1976) 65 Cal.App.3d 136.)(4) Your lawyer also can tell you whether money you or your spouse receive from a personal injury lawsuit or workers' compensation claim qualifies as community or separate property. (Fam. Code, §§ 780, 781 and 2603; Bd. of Pension Commissioner v. Superior Court (Corriveau) (1986) 183 Cal.App.3d 1012.)
You and your spouse can decide how to divide your community property debts and assets. You can divide them any way you like, even if the division is not equal. If you have incurred debts with your spouse and your spouse has agreed to assume those debts upon dissolution, that agreement is not binding upon creditors, and you may be called upon to pay.
Division of assets and debts can be a complicated process, and each of you may want a lawyer's advice. You also might want to save money by having one mediator-lawyer, especially if you and your spouse agree on matters of property division, support, and custody. However, it is still best that you retain separate counsel to review the final agreement.
If you and your spouse cannot agree, the court must decide how to divide your possessions. If a judge believes that the value of your community property is no more than a certain amount, or if he/she believes the parties are unable to agree on a division of the property, you may have to submit issues of the character, value and division of the community estate to arbitration. (Fam. Code, § 2554.) If you do not agree with the arbitrator's decision, you can then go to court. (Fam. Code, § 2555.) Unless there are unusual circumstances, your belongings will be divided evenly. However, the court might not split the ownership of each of your belongings between you and your spouse; instead, it might give each of you things of equal value. For example, if your spouse gets the furniture and appliances, you might get the family car, or something else of equal value.
Often, your house is the most valuable community property you and your spouse own. All your other possessions added together may not equal the value of your house. If you and your spouse cannot agree on what you do with your house, the court will make the decision. The court might say the house should be sold and the profit and any capital gains tax liability be divided equally between you and your spouse. If you have young children, the court might say that the spouse who has custody can live in the house and that the house should be sold at a later date. This is known as a "deferred sale of the home order." (Fam. Code, § 3800 et seq.) The deferred sale order may be modified if the spouse living in the house remarries or there are other changed circumstances. (Fam. Code, § 3808.) Ask your lawyer to explain other ways that you and your spouse or the court might settle the issue of what to do with your home.
Once the court approves the property settlement that you and your spouse agree to, you cannot make changes unless both spouses agree in writing and the court approves.
A military pension may be considered community property. Under federal law, a court may treat federal pension rights, including military pension rights, either as the sole property of the pension member, or in accordance with state law that treats pension rights as the community property of both the pension member and the spouse. (10 U.S.C. § 1408.) California law treats military pensions as community property. (Fam. Code, § 2610.) However, state courts cannot treat military retirement pay that has been waived by a veteran in order to receive veteran's disability benefits as community property. (Mansell v. Mansell (1989) 490 U.S. 581, 583.)
You can protect your share of the community property and your right to child custody and/or visitation while your divorce is pending. Whenever a summons is issued in a dissolution action, the summons contains an automatic temporary restraining order (ATRO; see Fam. Code, §§ 231-235, 2040 and 2340.) These restraining orders are effective against both a husband and wife until the petition for dissolution is dismissed, a judgment is entered, or the court makes further orders. The orders are enforceable anywhere in California by any law enforcement officer who has received or seen a copy of them. The restrained acts include a prohibition from removing minor children from the state; from disposing, concealing or transferring any property; and from making any extraordinary expenditures without notification. These restraining orders are issued without any showing of good cause, without any determination by a judge, and without any application by a party.
The court may also determine, upon application of either party, which spouse will temporarily use and control the property that you and your spouse have accumulated. (Fam. Code, §§ 2045, 6324 and 6325.)
"Spousal support" is the legal name for alimony. Spousal support is money paid by one spouse to another for the recipient’s support after they have divorced or legally separated. Spousal support can be awarded at any time, for different lengths of time, to either the husband or the wife. Spousal support can be combined with child support and termed “family support.” (Fam. Code, §§, 3650 and 4066.) If combined as family support, the entire amount of support may be treated for tax purposes like spousal support, depending on the circumstances. (See Int. Rev. Code, 26 U.S.C. § 71(b); Wells v. Commissioner (1998) 75 T.C.M. (CCH) 1507.) One should consult his or her tax advisor and/or attorney in order to determine the tax consequences of any award of spousal support or alimony.
You and your spouse can decide if one of you should receive spousal support.
If you and your spouse cannot agree about alimony, the court will decide. The court will decide whether spousal support should be paid, who will pay it, how much it will be and how long it will last. But the court does not order spousal support in all cases. (Fam. Code, § 2010.)
You can receive spousal support while you are waiting for your divorce to become finalized. Once you file a petition to dissolve your marriage, your most urgent needs may be for financial support for you and your children, especially if you are not working outside the home and have relied entirely on your husband's earnings for income. If your husband has a job and you do not work outside the home, the court will usually order your husband to pay for temporary support. The court in arriving at an amount to award in temporary support will try to maintain the status quo in both new households or to equalize the standard of living in both households. (Fam. Code, §§ 3600, 3601 and 3603.)
For purposes of permanent support, the amount you receive will be based on your needs, your children's needs, and your spouse's earnings. According to Family Code section 4330, the court may order a party to pay for the support of the other party an amount, for a period of time, that the court determines is just and reasonable, based on the standard of living established during the marriage, taking into consideration the following circumstances set forth in Family Code section 4320:
Family Code section 2105 imposes a duty on each spouse to serve upon the other Preliminary and Final Declarations of Disclosure concerning assets and liabilities, earnings, accumulations and expenses, and a current Income and Expense Declaration.(6) You may be required to submit copies of your state and federal income tax returns to your spouse's counsel during the course of the litigation over spousal and/or child support. (Fam. Code, § 3552.) The court may order the supporting party to give reasonable security for the payment of spousal support. (Fam. Code, § 4339.)
Perhaps neither of you needs spousal support when your marriage is dissolved. But needs can change. One spouse might have a long and expensive illness. Or the business of one spouse might fail. Anticipating such problems, your lawyer may advise you to ask the court to "keep the door open" for a certain period of time. You will then be able to ask the court for spousal support in case your needs change during that period. As long as you are entitled to spousal support, and if you did not agree that the amount or duration of support would be nonmodifiable, you can go back to court and ask the judge to increase or lower the amount whenever there is good reason. (Fam. Code, § 3651.) Courts have shown a willingness to interpret marital settlement agreements in favor of the right to spousal support, even in the face of conflicting language in the agreement. (In re Marriage of Vomacka (1984) 36 Cal.3d 459; In re Marriage of Brown (1995) 35 Cal.App.4th 785.)
You can lose most of your financial support from your ex-spouse if you have been cohabiting with someone else of the opposite sex and therefore need less money, unless otherwise agreed to by the parties in writing. The court may reduce your support until there is a change in your economic circumstances and you need support again. However, absent extraordinary circumstances, the income of the supporting spouse's subsequent spouse or nonmarital partner shall not be considered when determining or modifying spousal support. (Fam. Code, §§ 4057.5 and 4323.)(7)
Unless otherwise agreed to in writing, spousal support will cease upon the death of either party, or upon the remarriage of the spouse who had been receiving the support. (Fam. Code, § 4337.) According to Family Code section 4330(b), the court is required to tell the parties to a divorce that it is the goal of the state that each party shall make reasonable good faith efforts to become self-supporting, and that failure to make such efforts may be one of the factors considered by the court as a basis for modifying or terminating support.
If you have to go to court to obtain spousal (or child) support, you may be entitled to attorney's fees and costs. (Fam. Code, § 270 et seq.) A spouse can encumber his/her interest in the community real property in order to retain or maintain legal counsel for purposes of a marital dissolution. (Fam. Code, § 2033.) A court can award attorney's fees, where just and reasonable under the relative circumstances of the parties. Attorney's fees shall be payable from any type of property, whether community or separate. (Fam. Code, § 2032.) A judgment for spousal support, family support (or child support), including all interests and penalties, does not need to be renewed but is enforceable until paid in full. (Code Civ. Proc., § 683.13.)
Subject to court approval, you and your spouse can decide with whom the children will live. If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider the wishes of the child in making an order granting or modifying custody. (Fam. Code, § 3042.) There are two possible types of custody by parents--"joint custody" or "sole custody." No matter which parent the children live with, each parent ordinarily continues to have a responsibility to his/her children.
The Legislature has declared it the public policy of this state to assure that minor children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, and to encourage parents to share the rights and responsibilities of child-raising. (Fam. Code, § 3020.)(8)
If you and your spouse cannot agree on custody, custody is granted in the following order of preference, according to the best interests of the child (i.e., the child's health, safety and welfare; the nature and amount of contact with both parents; any history of abuse by a parent or potential custodian against certain other people;(9) and any history of habitual or continual illegal use of controlled substances or alcohol by either parent (Fam. Code, § 3011):
Family Code section 3151 sets forth the duties of appointed counsel for a child in a custody or visitation proceeding.
There is no preference or presumption for or against joint legal custody, joint physical custody, or sole custody. (Fam. Code, §§ 3040 and 3043.) However, when a request for joint custody is granted or denied, the court, upon request, shall state in its decision the specific reasons for granting or denying the request. (Fam. Code, § 3082.)
Sole legal custody means that one parent shall have the right and the responsibility to make the decisions relating to the health, education, and welfare of the child. (Fam. Code, § 3006.)
Sole physical custody means a child shall reside with and be under the supervision of one parent. (Fam. Code, § 3007.) The parent who does not have sole physical or legal custody has a right to access to records and information pertaining to the child (Fam. Code, § 3025), and usually has "reasonable visitation" rights ( in other words, he/she can see the children at certain times and places that both parents agree on), unless the visitation would be detrimental to the best interests of the child. (In the latter situation, the court may limit visitation to situations in which a third person, specified by the court, is present.) If the parents cannot agree, the court will set up a visitation schedule. Reasonable visitation rights may also be granted to any other person having an interest in the welfare of the child, including stepparents, close relatives where the parent of an unemancipated minor is deceased, or grandparents. (Fam. Code, §§ 3100-3104.)
Joint custody means that both parents are involved in making decisions about the children, such as where the children will go to school and where they will live. (Fam. Code, § 3002.) Joint physical custody means that both parents have significant periods of physical custody (Fam. Code, § 3002), and joint legal custody means that parents share the right and responsibility to make significant decisions relating to the children's health, education and welfare. (Fam. Code, § 3003.) For example, the children might spend six months a year with each parent, or the children might spend more time with one parent than with the other.
In making an order of joint physical or joint legal custody, the court may specify one parent as the primary caretaker of the child and one home as the primary home of the child. (Fam. Code, § 3086.)
In making an order for custody, the court may specify that a parent shall give 45 days notice to the other parent if the parent plans to change the residence of the child for more than 30 days, unless there is prior written agreement. (Fam. Code, § 3024.)
The California Supreme Court recently decided the case of Burgess v. Burgess (1996) 13 Cal.4th 25, in which it ruled that parents with sole physical custody have the right to relocate with minor children without having to prove that the move is a necessity. The court said that custodial parents do not bear the burden of proof in such situations, and that trial judges should intervene to change custody only when the rights or welfare of the children are prejudiced.
Wendy Burgess was allowed to move with her children 40 miles away because her reason for moving was job-related, and not for the purpose of frustrating Paul Burgess' visitation rights; the children would benefit by a reduction in her commute time; and Paul Burgess would still be able to visit his children regularly and often. The court noted that it was unrealistic to assume that divorced parents would remain in the same location, given that economic necessity and remarriage accounted for the bulk of relocations. In a footnote, the court said that in cases where parents share joint physical custody, there is no presumption favoring moveaways, and that the trial judge should make a new determination of what is in the best interests of the child.(10)
An order for joint custody can be modified or terminated if in the best interests of the child. (Fam. Code, § 3087.)
The court may decide to give custody to neither parent, but to a third party, without the consent of the parents. However, the court can only award custody to a third person if it finds that award of custody to either parent would be detrimental to the child and that the award of custody to a third party is required to serve the best interests of the child. (Fam. Code, § 3041.)
If there are issues besides child custody, the court will separate out the child custody issue and hear it before the other issues. (Fam. Code, § 4003.)
Courts must have mediation proceedings to help resolve custody and visitation disputes.(11) In order to reduce or eliminate courtroom battles over child custody and visitation rights, parties must go to a court-appointed mediator before any hearing involving a dispute concerning custody of or visitation with their children. The counselors will try to help you and your spouse settle your differences and may make a recommendation to the court on a way to handle custody and visitation. (See Fam. Code, § 1810 et seq. for operation of family conciliation courts; some counties offer other services that can help you and your spouse get back together, adjust to the dissolution, or settle disputes over other issues besides custody and visitation.)
The custody agreements you originally agreed to can be changed. If you later decide the custody arrangements you agreed to are not in the best interests of our children, you can, with or without an attorney, apply to the superior court in your county to change any child custody or visitation arrangements previously agreed upon. Modifications of these previous arrangements can be made through the mediator in certain counties without formal court hearings. The agreements reached by the parties may be formalized by the judge of the superior court. If this mediation fails, you still have the right to petition the superior court for a formal court hearing. (Fam. Code, §§ 3089, 3160-3164, 3173, 3175-3186.)
If you believe your spouse will not appear at the child custody hearing with your children, you can get help from the district attorney. If your children are in your spouse's physical possession and their whereabouts are unknown to you, you may ask the district attorney to locate your spouse and compel him/her to appear at the custody proceeding with your children. Your spouse may do the same if you have physical possession of the children and there is reason to believe you will not appear. (Fam. Code, §§ 3130-3134.5, and 3140.)
If your spouse kidnaps your children, you are entitled to get help from the district attorney. If you have been awarded sole custody of your children and your spouse takes the children from you in violation of a custody order, you can ask the district attorney to take all actions necessary to locate your children and to enforce the custody order. A peace officer is authorized to take a child into protective custody if it appears that someone will conceal the child to evade the authority of the court, there is no lawful custodian available to take custody of the child, there are conflicting custody orders or claims regarding the child, or the child is an abducted child. (Fam. Code, §§ 3134.5, 3411, and 6240 et seq.) A parent deprived of joint physical custody of a child can also make use of laws for the relief of child-snatching and kidnapping. (Fam. Code, § 3084.) Child abduction is punishable by up to a maximum jail or prison term of four years, a fine of not more than $10,000, or both. ( Pen. Code, § 277 et seq.; see further discussion in Violence Against Women and Children portion of this handbook.) If a person has wrongfully taken a child from another state or has engaged in similar reprehensible conduct, the court may decline to exercise jurisdiction in a case brought by that person for purposes of adjudicating custody. (Fam. Code, § 3408.)
The court may order financial compensation for periods when a parent fails to assume caretaker responsibility, or when a parent has been thwarted when attempting to exercise custody or visitation rights contemplated by a custody or visitation order or agreement between the parents. (Fam. Code, § 3028.)
Family Code section 3400 et seq. contains the Uniform Child Custody Jurisdiction Act, or UCCJA. The purposes of this act are to:
This uniform act provides a method of determining subject matter jurisdiction in child custody cases in California. The act applies to juvenile dependency proceedings and actions to terminate parental rights. The Federal Parental Kidnapping Act should also be consulted. (28 U.S.C. § 1738A.)
The policies of the UCCJA also apply to international custody disputes. (In re Stephanie M. (1994) 7 Cal.4th 295.) However, international child custody disputes would be affected by the Hague Conventions, of which the United States is a signatory. These provide that the place of the child's habitual residence should be taken into account in determining custody of the child. (See Huynh Thi Anh v. Leui (1978) 586 F.2d 625, 630.)
If you were married and the marriage dissolved, you and your spouse can work out a child support plan, but the court must approve the amount to be paid. You are entitled to request current income and expense declarations from your spouse. (Fam. Code, § 3664 et seq.) If you cannot agree, the court will decide whether you should receive child support payments and how much they should be.(12) (If your spouse has custody of your child, you could be ordered to pay child support.) Among other things, the court will consider your children's best interests. It will also consider whether you or your spouse are supporting other people, such as children from a previous marriage. (Fam. Code, § 4001 et seq.) The court will also consider the medical insurance coverage available to everyone involved. (Fam. Code, §§ 4006 et seq.) Payment of child support is to be made before payment of any debts owed to creditors. (Fam. Code, § 4011.) Upon a showing of good cause, a court may order a parent required to make a payment of child support to give reasonable security for the payment (Fam. Code, § 4102) and may require the payment of a "child support security deposit" of up to one year's child support. (Fam. Code, § 4560 et seq.)
Since January 1993 there have been statewide uniform guidelines for the payment of child support. (Fam. Code, § 4050 et seq.)(13) These were implemented in compliance with the federal Family Support Act of 1988. (42 U.S.C. § 602 et seq.) The guidelines take into account each parent's actual income(14) and responsibility for the children, and seek to minimize significant disparities in children's living standards between two homes. (Fam. Code, § 4053.) The income of the subsequent spouse or nonmarital partner of the parent obligated to pay child support, or of the person receiving the child support shall not be considered in determining or modifying the support, except where excluding the income would lead to extreme and severe hardship to the child subject to the child support award, in which case the court shall also consider whether including that income would lead to extreme and severe hardship to any child supported by the obligor, or by the obligor's subsequent spouse or nonmarital partner. If any portion of the income of either parent's subsequent spouse or nonmarital partner is allowed to be considered, the court shall allow a hardship deduction based on the minimum living expenses for one or more stepchildren of the party subject to the order. An extraordinary case includes a parent who voluntarily or intentionally quits work or reduces income, or who intentionally remains unemployed or underemployed and relies on a subsequent spouse's income. (Fam. Code, § 4057.5.)
Family Code section 4058(b) allows a court, in its discretion, to consider the earning capacity of the parent in lieu of the parent's income, where this is in the best interests of the child. It is not necessary that the parent unreasonably failed to seek or accept employment opportunities, according to the recently decided case of In re Marriage of Hinman (1997) 55 Cal.App.4th 988. (However, this opinion cites other Court of Appeal cases to the contrary.)(15)
Additional child support may be ordered to cover such items as child care costs, uninsured health care costs, costs related to educational or other special needs of the children, and travel expenses for visitation. (Fam. Code, § 4062.) The court may adjust the child support order as appropriate to accommodate the seasonal or fluctuating income of either parent. (Fam. Code, § 4064.) A party can bring an action in court to enforce the other parent's duty to pay child support. (Fam. Code, § 4000.)
Usually, child support payments are made until your children who are not self-supporting complete the 12th grade or attain the age of 19, whichever occurs first (Fam. Code, § 4007), unless there is a written agreement about subsequent payments for education, etc. However, if you have a child under 19 who gets married or becomes "emancipated" or self-supporting, the child support payments can be stopped. (Fam. Code, §§ 3900 and 3901.)
Unlike spousal support, the child support money you receive is not taxable. If one spouse pays more than half the cost of supporting a child, he/she can usually claim the child as a tax exemption. The two of you can agree who gets the tax exemption. (Rev. & Tax. Code, § 17054; 26 U.S.C. § 152.)
With certain exceptions, a child support order can be modified or terminated. (Fam. Code, §§ 3651, 3653, 3680 and 4010.) An order modifying or terminating a child support order may include the payment of costs and attorneys' fees, except as against a government agency. (Fam. Code, § 3652.)
You can obtain a court order that your spouse be required to provide health insurance coverage to supported children if that insurance is available at no or at a reasonable cost to the parent. (Fam. Code, § 3751.) The cost of coverage is generally considered to be reasonable if it is employment-related group health insurance, or other group health insurance. There is a rebuttable presumption that such cost is reasonable to the parent, although the actual cost will be examined in determining reasonableness. The court is required to advise each parent of his/her rights and obligations in this respect. (Fam. Code, § 4062 et seq.)(16) The court may, except for good cause shown, also order a health insurance coverage assignment by the employer.
Effective January 1, 1994, when the court orders a party to pay support, its order should include an earnings assignment order directing the employer to pay a specified amount to the person owed child support. Earnings subject to such an order once the support is one month overdue include wages, payments due for services of independent contractors, dividends, rents, royalties, patent rights, natural resource rights, payments or credits due as a result of written or oral contracts for services or sale, and payments due for worker's compensation and temporary disability benefits. (Fam. Code, §§ 5206.) Family Code section 4508 authorizes every child support order, with specified exceptions, to require the obligor to designate an account for paying child support by electronic funds transfer. This section also authorizes the support order to require the obligor to deposit funds in an interest-bearing account in a bank, savings and loan or credit union if the obligor has an account there.
The obligor parent has a duty to notify the obligee parent of a change of employer name, address, and telephone number within 10 days of obtaining new employment. (Fam. Code, § 5281.) Each parent, after entry of a child support order or judgment of paternity, must also file with the court their residential and mailing addresses, social security numbers, and telephone and driver's license numbers. (Fam. Code, § 4014.) The employer also has an obligation to notify the obligee parent when the obligor parent leaves its employment. (Fam. Code, § 5281) A state employee may authorize automatic payroll deduction to pay for child support payments. (Gov. Code, § 1151.5.) Support payments can also be paid from unemployment benefits if the creditor seeks an earnings assignment order,(17) either directly or through the appropriate district attorney. (Code Civ. Proc., § 704.120; Unemp. Ins. Code, § 1255.7.) Welfare and Institutions Code, section 11350.5, sets forth procedures for withholding unemployment compensation and unemployment compensation disability benefits. Welfare and Institutions Code section 11357 requires the Public Employee Retirement System (PERS) to withhold amounts certified as overdue support from retirement benefits and refunds.
Government Code section 12419.5 allows the State Controller to deduct from income tax refunds amounts owed to a state agency for child support payments. Code of Civil Procedure section 708.30 sets forth a procedure for parents owed child support to file money judgments or abstracts of such judgments with the public entities that owe money to a parent who is 90 days overdue in paying child support, such as the State Franchise Tax Board or the State Lottery.(18)
Welfare and Institutions Code section 11350.6 prohibits state professional or business licensing agencies from issuing or renewing a license to a licensee who is not in compliance with a support order or judgment, and whose name is on a certified noncompliance list provided by the Department of Social Services. The department may also request that licenses of obligors who have been out of compliance for more than four months be suspended. (See also Bus. & Prof. Code, § 490.5; Veh. Code, § 15310.) These provisions also apply to appointments and commissions by the Secretary of State, such as to the office of a notary public, and to drivers' licenses issued by the Department of Motor Vehicles. (Temporary licenses may be granted under certain circumstances.)
Section 19721.6 of the Revenue and Taxation Code requires the Franchise Tax Board, through a cooperative agreement with the State Department of Social Services, and in cooperation with certain financial institutions, to operate a Financial Institution Match System to provide certain information for each noncustodial parent who maintains an account at the institution. (See also Assembly Bill No. 247 (1997-1998 Reg. Sess.), that requires the state to pay for the cost of the Franchise Tax Board's child support program, requires the Board to provide district attorneys with social security numbers on request and requires them to accept cases even if the obligor owes back taxes.)
Welfare and Institutions Code section 16575, et seq., established the Statewide Automated Child Support System to provide a statewide registry of all child support orders in California. Newly enacted Welfare and Institutions Code section 11475.4 requires the state, by October 1, 1998, to operate a Child Support Centralized Collection and Distribution Unit (CSCCDU), in compliance with federal law.
If your ex-spouse does not pay support to you or your children as was ordered by the court, you may contact one of the following for immediate help:
A child, family, or spousal support order may be enforced by writ of execution or notice of levy without prior court approval, as long as the support order remains enforceable. (Fam. Code, §§ 5100 and 5101.) A support order may not be enforced against an employee benefit plan if the plan was not joined as a party to the proceeding in which the support order was obtained. (Fam. Code, § 2060.)(19)
There is also a Child Support Delinquency Reporting Law, Family Code section 4700, et seq., pursuant to which the state Department of Social Services administers a statewide automated system for reporting court-ordered child support obligations to credit reporting agencies. Any person with a court order for child support, the payments on which are more than 30 days in arrears, may file in the superior court and serve on the person owing child support, a notice of delinquency and, with certain exceptions, can obtain interest on the amounts due. (Fam. Code, § 4722.) This order can be turned into an enforceable money judgment. (Fam. Code, § 4725.)
You may get a court order to force your spouse to pay the child support he/she has been ordered to pay, within the time period applicable for enforcing such a judgment, even if the child has turned 18. (Fam. Code, § 4503.) You can ask a judge to charge your spouse with "contempt of court" for disobeying a court order. (Code Civ. Proc., § 1209.) The penalty for contempt may be a fine of up to $1,000 or five days in jail, or both for each monthly payment that is not paid in full. Section 4720, et seq., of the Family Code authorizes the imposition of civil penalties on a person who is egregiously delinquent in child support payments.
Where a party is found in contempt for failure to comply with a court order issued pursuant to the Family Code, the court can order the performance of community service, imprisonment and/or an administrative fee not to exceed the actual cost of the contemner's administration and supervision while assigned to a community service program. (Code Civ. Proc., § 1218.) If the contempt consists of the omission to perform an act yet in the power of the person to perform, he/she can be imprisoned until he/she has performed it. (Code Civ. Proc., § 1219.) If the contempt is for failure to pay child, family, or spousal support, each month that payment has not been made in full may be alleged as a separate count of contempt, and punishment can be imposed for each count proven. (Code Civ. Proc., § 1218.5.)(20)
In 1998, the California Legislature enacted the Uniform Interstate Family Support Act (UIFSA) (Fam. Code, § 4900 et seq.) to make it easier for California to enforce support orders issued by other state courts. UIFSA streamlines enforcement between states, seeks uniformity and rules for collection of child support, provides district attorneys with the ability to secure out-of-state wage assignments, and calls for reciprocity between the states in implementing wage assignments. In a recent decision, the Court of Appeal ruled that California courts can alter the effect of out-of-state child support orders to take into account money previously owed by one parent to another. (In re Marriage of Keith G. and Suzanne H. (1998) ____ Cal.App.4th, 98 Daily Journal D.A.R. 2421.)
The determination or enforcement of a duty of support owed to a custodial parent is unaffected by any interference by the custodial parent with rights of custody or visitation granted by the court. (Fam. Code, §§ 3556 and 4845(b); In re Marriage of Comer (1996) 14 Cal.4th 504 (noncustodial parent was ordered to pay child support arrears for minor children and reimburse the county for Aid to Families with Dependent Children (AFDC) payments, notwithstanding evidence that the custodial parent actively concealed the children); Moffat v. Moffat (1980) 27 Cal.3d 645 (the child's sustenance is the paramount consideration, and depriving a noncustodial parent of visitation rights should not diminish that parent's obligation to provide child support).)(21)
Newly enacted Family Code section 5600 et seq. governs the procedures involving inter-county support obligations.
Welfare and Institutions Code section 11475.1 obligates the district attorney to maintain a single organizational unit to establish, modify and enforce child support obligations and court-imposed spousal support orders, and to determine paternity in the case of a child born out of wedlock.(22) (See Fam. Code, §§ 3029, 4002, 4200-4203, 4350 and 7551 et seq.; Welf. & Inst. Code, §§ 11350.1 and 11475.1.)(23) If you receive public assistance and child support, your spouse must make the child support payments to you through the district attorney's office, and may be ordered to pay child support through that office as well. Families leaving welfare are entitled to receive past-due child support ahead of the state. (Code Civ. Proc., § 695.221(f) and (g).)
For all cases opened after December 31, 1995, the district attorney's office will only enforce child support arrearages signed under penalty of perjury by the applicant, arrearages accrued after the case was opened, or arrearages determined by the court. For cases opened on or before that date, the district attorney shall enforce only arrearages alleged in a statement or where there is some other reasonable basis for believing that the amount of the claimed arrearages is correct. (Welf. & Inst. Code, § 11350.9.)
The district attorney is authorized to ask financial institutions for information regarding absent parents' accounts. (Gov. Code, § 7480.) The district attorney can serve a notice of assignment of earnings to an employer pursuant to Family Code section 5246. An employer is obligated to provide certain health coverage information to the district attorney's office (Fam. Code, §§ 3760-3772). The district attorney's office can also apply for health insurance coverage assignment orders from the court. A court, city, county or other public agency can accept a credit card for payment of child, family or spousal support. (Gov. Code, § 6159.)
If the person owed the support does not know the location of the person owing the support, the appropriate district attorney shall make use of the California parent locator service maintained by the Department of Justice and forward information obtained to the court. (Fam. Code, § 5280; Welf. & Inst. Code, § 11478.5 et seq.)(24)
According to newly enacted Assembly Bill 1395, effective January 1, 1998, the district attorney must, with certain exceptions, refer all delinquent child support cases, where no wage assignment is in place, to the Franchise Tax Board for collection. The Franchise Tax Board must provide district attorneys with social security numbers upon request. (Rev. and Tax. Code, §§ 19271 and 19274.)
The Child Support Recovery Act of 1992 (CSRA), 18 U.S.C. § 228, was enacted to improve child support collection and reduce welfare expenditures by removing obstacles to a state's ability to prosecute for violation of another state's order. CSRA makes it a federal crime punishable by six months to two years imprisonment and a fine, to willfully fail to support a child living in another state if the obligation is over $5,000, or has been unpaid for more than one year. (Restitution can also be ordered.) The Ninth Circuit Court of Appeals found CSRA to be constitutional in U.S. v. Mussari, (9th Cir. 1996) 95 F.3d 787.
CSRA is designed to complement the Child Support Enforcement Act of 1985, 42 U.S.C. §§ 651-669B, Title IV-D of the Social Security Act.(25)
In a recent opinion, the United States Supreme Court ruled that the particular items of Title IV-D at issue in that case did not give individuals a federal right to force a state agency to comply with Title IV-D. (Blessing v. Freestone (1997) U.S. , 117 S.Ct. 1353.) To qualify for federal Aid to Families With Dependent Children (AFDC) funds(26), a state must certify that it will operate a child support enforcement program that conforms with the numerous requirements set forth in Title IV-D, and will do so under a detailed plan approved by the Secretary of Health and Human Services. (42 U.S.C. § 602(a)(2) and 652 (a)(3).) The federal government underwrites two-thirds of the cost of a state's child support efforts (42 U.S.C. § 655(a)) if the state establishes a comprehensive system to establish paternity, locate absent parents and help families obtain support orders. (42 U.S.C. §§ 651 and 654.)
A state must provide these services free of charge to AFDC recipients, and, when requested, for a nominal fee to children and custodial parents who are not receiving AFDC payments. (42 U.S.C. §§ 651 and 654(4).) AFDC recipients must assign their child support payments to the state and fully cooperate with the state's efforts to establish paternity and obtain support payments. The state may keep most of the support payments it collects from AFDC families in order to offset the costs of providing welfare benefits, but it must pass through to the families some of this money when the families leave welfare. (42 U.S.C. § 657 (a)(2).) Non-AFDC recipients who request the state's aid are entitled to have all collected funds passed through to them. (42 U.S.C. § 657 (a)(3).)
The structure of each state's Title IV-D agency must conform to federal guidelines. If a state delegates its disbursement function to local governments, it must reward the most efficient local agencies with a share of federal incentive payments. (42 U.S.C. § 654 (22.).) To maintain detailed records of all pending cases, as well as to generate reports required by federal authorities and provide for the electronic transfer of funds for income withholding and interstate collections, states must establish computer systems that meet numerous federal specifications by October 1997. (42 U.S.C. § 654 (a).)(27) Each participating state must also enact laws designed to streamline paternity and child support actions. (42 U.S.C. § 654 (20) and 666.)
The Office of Child Support Enforcement (OCSE) within the Department of Health and Human Services, audits states' compliance with their federally-approved plans. For example, states must aim to establish paternity in 90 percent of all eligible cases. (42 U.S.C. § 652 (g).) If a state does not substantially comply with Title IV-D requirements, its AFDC grant can be reduced up to five percent. (42 U.S.C. § 609 (a)(8).)
If your spouse has assaulted or threatened you and you fear that he/she will do so again, you can ask the court to issue a protective order while your dissolution is in progress, ordering your spouse to stay away from your home. If the court feels it is necessary, it may issue an order forbidding your spouse from contacting, either directly or indirectly, by mail or otherwise, molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, destroying personal property, coming within a specified distance or disturbing the peace of you or other named family or household members. (Fam. Code, §§ 2045, 6218 and 6320.) The court can order your spouse to be excluded from your dwelling (Fam. Code, § 6321) and can make orders determining the temporary custody of a child to shelter it from exposure to domestic violence or conflict. (Fam. Code, § 6323.) If your spouse knowingly violates any court orders, he/she can be charged with a misdemeanor punishable by a fine of not more than $1,000, or by imprisonment in county jail for not more than a year, or both. (Fam. Code, § 6388; Pen. Code, § 273.6.)
Family Code Section 3031 encourages the court, when considering the issue of child custody or visitation, to make a reasonable effort to ascertain whether or not any emergency protective orders, protective orders, or other restraining orders are in effect. The court is required to specify the time, day, place and manner of transfer of the child in the custody or visitation order in cases where domestic violence is alleged and a protective order has been issued. If the party is staying at a domestic violence shelter or other confidential location, the court is required to design its custody and visitation order to prevent disclosure of the confidential location. The court is also required to consider whether the best interests of the child require that custody or visitation be suspended or denied or be limited to supervision by a third person. (See also Fam. Code, § 3100 and 6323.)(28)
Family Code section 6389 provides that a person subject to a domestic violence protective order may not own or possess a firearm while that protective order is in effect, if the court order so prohibits. Violation of such an order is a misdemeanor, punishable by imprisonment in the county jail for a term not exceeding one year, by a fine not exceeding $1,000, or by both.
If a violation of a court order issued pursuant to Family Code section 6218 (domestic violence protective order) or Code of Civil Procedure sections 527.6 and 527.8 (civil anti-harassment orders) results in physical injury, the person shall be punished by a fine of not more than $2,000, or by imprisonment for 48 hours up to one year in the county jail, or both. A longer jail sentence is prescribed for a second violation of an order resulting in physical violence within a year of the first violation. The person violating the order may also be ordered to undergo counseling, to make payments to a battered women's shelter, and to reimburse the victim for counseling and other reasonable expenses. (Pen. Code, § 273.6.)
(For further details, see the chapter on Violence Against Women and Children in this handbook.)
On divorce, you should review your will because ending your marriage may automatically change a disposition made by your will to your former spouse. (Fam. Code, § 2024.)
Congress allows for exceptions to a debtor's ability to discharge all his/her debts in bankruptcy. One of these exceptions is for certain familial obligations (alimony, maintenance or support) awarded through a settlement agreement or during the course of a divorce proceeding. (11 U.S.C. § 523(a)(5) and (15); In re Sternberg (9th Cir. 1996) 85 F.3d 1400, 1405.) In addition, 11 U.S.C. § 523(a)(4) may prevent a debtor from discharging in bankruptcy debts arising from fraud committed while acting towards the spouse in a fiduciary capacity. Family Code, section 3592, also allows, in the interest of justice, modification of a support decree following a discharge of marital debts in bankruptcy.
Sponsors of employee benefit plans that provide medical insurance are required to offer continuing coverage for persons who would otherwise lose their coverage because of the death of a spouse, or as the result of a divorce or legal separation. ( 29 U.S.C. §§ 1161-1169.) If either of these events occur, you should contact your plan sponsor to notify them that you want to continue medical coverage. The plan sponsor is required to provide you with information regarding rights and responsibilities relating to continuing coverage.
For some people, religious, economic or other reasons make a divorce undesirable. If you do not want a divorce, but you and your spouse are living apart and have no hopes of reconciling, you and your spouse can obtain a legal separation.
Grounds for a legal separation are the same as those for divorce. A legal separation can be obtained on the grounds of irreconcilable differences or incurable insanity. (Fam. Code, § 2310.)
There is no residency requirement for a legal separation. You do not need to have lived in California for six months to apply for a legal separation. (Fam. Code, § 2330.)
When you make a request for a legal separation, a property settlement and arrangements for spousal support, child support and child custody must also be made. (See discussion, supra, under Marital Dissolution.) An order to establish paternity can also be sought. (Fam. Code, § 2330.1.)
Community property laws apply to legal separations just as they do to divorce. When you receive a legal separation, you are entitled to half of all property earned by you or your spouse during your marriage. (See discussion, supra, under Marital Dissolution.)
If one spouse asks for a legal separation and the other spouse asks for a divorce, the court will proceed with the divorce. (Fam. Code, § 2345; 2347.)
If you and your spouse are separated without a legal order and have no intention or hope of reconciling, your earnings after separation are your own, and your spouse's earnings are his/her own. Such earnings are not community property unless the spouses are merely living apart on a temporary basis. (Fam. Code, § 771.)
A legal separation does not end your marriage. You cannot remarry unless you get a divorce. (Fam. Code, § 2201.)
The legal term for an annulment is a "nullity." If you get a nullity, the court will say that legally your marriage never existed.
The grounds on which a marriage is voidable are strict and most people do not qualify. Possible circumstances under which you may obtain a nullity include: if you were married at too young an age, and without proper consent; if your consent to the marriage was obtained by fraud, or force; if either party is of unsound mind or physically incapable of entering into the marriage state; or if you wrongfully believed your first spouse to be dead. A lawyer can best counsel you on whether you meet the qualifications to receive an annulment. (Fam. Code, § 2210 et seq.)
You may legally remarry at any time after the court grants you a nullity. (Fam. Code, § 2212.)
Marriages that are declared void are treated as if they never existed. After a marriage is declared void, legally it is as if the couple were never married. (Fam. Code, § 2212.)
If either or both spouses in a marriage that has been declared void believed in good faith that the marriage was valid, the spouse must be treated as a putative spouse. In such a case, what would have been considered "community property" in a marriage is called "quasi-marital property" and is divided like community property. (Fam. Code, §§ 2251-2252.)
Some marriages are void from the beginning. The grounds upon which a marriage can be found to be void are incest and bigamy/polygamy, with certain exceptions. (Fam. Code, §§ 2200-2201.)
Bigamy is being married to two people at the same time.
Bigamy is illegal. If you are married to two people at the same time, the marriage that occurred second is generally illegal and considered void. (Fam. Code, § 2201.)
Bigamy is punishable by a fine not exceeding $10,000, or by imprisonment in a county jail not exceeding one year or in the state prison. (Pen. Code, § 283.)
If your spouse is absent for more than five years and you believe him/her dead, then marrying again is not considered bigamy. (Fam. Code, § 2201.)
An incestuous marriage is defined as marriage between parents and children, ancestors and descendants of every degree and between brothers and sisters, including half-brothers and sisters, and between uncles and nieces, or aunts and nephews. Such marriages are void from the beginning. (Fam. Code, § 2200.)
Engaging in an incestuous marriage or in incestuous sexual intercourse is a criminal offense and is punishable by imprisonment in the state prison. (Pen. Code, § 285.)
Solemnizing incestuous marriages is forbidden. Doing so willfully and knowingly can lead to a fine or imprisonment. (Pen. Code, § 359.)
The issues involved in bigamy and incest are complicated. It is best to consult a lawyer with specific problems or questions.
A judicial proceeding must be filed to declare a void marriage a nullity. (Fam. Code, § 2250.)
In most situations, California law does not recognize cohabitation as a legal contract between two people, as it does marriage. However, you do have some rights with respect to the person you are living with, particularly if you have some sort of written or oral agreement. Also, if you have children by a person you are not married to, your children and their biological parent have a legally protected relationship.
Under California law, you may not contract a common law marriage. (A common law marriage is a "marriage" where two people live together with the intention of being married, but do not participate in the ceremony; Fam. Code, § 300.) However, if you have contracted a common law marriage in a state that recognizes such marriages to be valid, California will recognize your common law marriage as valid. (Fam. Code, § 308.)
If you are living with a man, he may adopt your children, but the children's father must usually consent to the adoption. (Fam. Code, §§ 8604 and 8606.)
If you have been living with someone without being married, you may have some rights if you separate. In Marvin v. Marvin (1976) 18 Cal.3d 660, the California Supreme Court upheld the enforceability of oral or written contracts between two people living together. The court held that where a man and woman live together and they make an agreement that one person will provide household services (excluding sexual services) with the reasonable expectation of being paid for those services, the person who performed those services has a legal right to be compensated at the agreed amount, or at reasonable value for those services. The court ruled that when an unmarried couple separates, the court has the power to divide the property according to the couple's reasonable expectations during cohabitation. A presumption that the unmarried couple intended to deal fairly with each other will be applied by the court. However, intentions, expectations, and agreements of two people are very difficult to prove if they are not stated in some form of written agreement.
Since the Marvin case, the court of appeal has twice refused to award support to a cohabitant either as a rehabilitative award (Taylor v. Polackwich (1983) 145 Cal.App.3d 1014, or as temporary support (Friedman v. Friedman (1993) 20 Cal.App.4th 876). Yet two more recent Court of Appeal cases have signaled more favorable treatment of support claims after termination of cohabitation relationships that resemble marriage (Byrne v. Laura (1997) 52 Cal.App.4th 1054 (where the court suggested that Byrne could argue for all or half of her cohabitant's assets by way of support based on an oral or implied agreement) and Cochran v. Cochran (1991) 56 Cal.App.4th 1115 (the court indicated that the statute of limitations for breach of an oral agreement of support commenced when Cochran stopped paying support).
If the person with whom you have been living dies without leaving a will, you will not inherit any of his/her possessions. His/her property will pass to his/her surviving family members. You might be able to claim a portion of his/her estate if you had an expressed agreement to pool your earnings and belongings. However, this is difficult to prove if your agreement was not in writing. For the protection of both parties, you and your partner should each prepare a will to ensure that your intentions are carried out. (Prob. Code, § 6110 et seq.)
California no longer categorizes children as "legitimate" or "illegitimate." The law says that the parent-child relationship extends equally to every child and to every parent, regardless of the marital status of the parents. Establishing a parent-child relationship is important for such things as inheritance, child support obligations,(29) custody of children, and adoption. Everything in this section applies to any person who is the parent of your children, whether you ever lived with that person or not.
The court can issue an order to establish paternity for purposes of determining child support, through the administration of blood tests to the mother, child and alleged father, if appropriate. If a party refuses to take a blood test, the court can resolve the issue of paternity against that party. (Fam. Code, §§ 2330.1 and 7550-7557, et seq., and Welf. & Inst. Code, § 11352.) A voluntary declaration of paternity may also be made. (Fam. Code, § 7570 et seq.)
A previous determination of paternity by another state court is given full faith and credit by California courts. (Fam. Code, § 4846.)
If you have a child with a person you are not married to, that person has the same obligations to the child as if you were married. (Fam. Code, § 7602.)
A man is presumed to be the father of a child if any of the following conditions exist (Fam. Code, § 7611):
A presumption means that the court will hold the man to be the father of the child if any of the above circumstances exist, unless he can provide clear and convincing evidence that he is not the father. (Fam. Code, § 7612.)
According to Family Code sections 7540-7541, (31) the child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage, unless the court finds otherwise, based on conclusions of experts who have performed blood tests on the husband within two years of the child's birth.
You may get child support from the father of your child even if you were never married to him. If you want to establish that a man is the father of your child, you may bring an action in the superior court. Jurisdiction is established if the person had intercourse in this state and the child could have been conceived by that act of intercourse. (Fam. Code, § 7620.) If the court decides that a man is the father of your child, the court may order him to pay for part of the child's support. The court can also order the father to help pay for part of the expenses you incurred during your pregnancy. The district attorney may also bring an action to establish paternity if he/she feels it appropriate to do so, as may a man presumed to be the child's father, the child or any interested party. (Fam. Code, § 7630 et seq.)
Unmarried parents may petition the court to receive assistance in developing custody and visitation plans. You do not need an attorney to receive such assistance. (Fam. Code, § 7637.)
The Family Support Act of 1988 (42 U.S.C. § 602) required states by 1991 to substantially increase the number of cases in which paternity is established. By 1990 or later, the Act required the tracking of social security numbers of both parents for every child born and by 1991, genetic testing, largely paid by federal funds, in all contested paternity cases. (Fam. Code § 7550 et seq. implements this federal act.)
Even if you were never married, the father of your child can request that the court give him custody or visitation rights. (Fam. Code, § 7637.) Refusal to allow a parent to exercise custody rights is a criminal violation. (Pen. Code, § 277 et seq.)
According to California law, the father and mother of a minor child have an equal responsibility to "support their child in the manner suitable to the child's circumstances. (Fam. Code, § 3900.)(32) This may be enforced more easily when a child's biological parents are married and living together. However, regardless of the relationship between a child's parents, each parent has a responsibility to support his or her child. The sections on divorce and unmarried couples dealt with child custody and child support in those cases. This section will give you an overview of parent-child rights and responsibilities, and then will discuss alternative parenting methods, particularly adoption, artificial insemination, and surrogate motherhood.
Until a child is an adult or marries, his or her parents are generally legally responsible to provide for that minor's support, including health care, and education. (Fam. Code, § 7505 and Welf. & Inst. Code, § 14008.)
If a parent is incarcerated, Welfare and Institutions Code section 361.5 (e)(1) provides that the court shall order reasonable services (such as maintaining contact through collect telephone calls, transportation services, visitation services, or reasonable services to extended family members or foster parents providing care for a minor), unless determined by clear and convincing evidence to be detrimental to a minor.(33) In determining detriment, the court will consider the age of the minor; the degree of parent-child bonding; the length of the parent's sentence; the nature of the parent's crime or illness; the degree of detriment to the minor if the services are not offered; for minors 10 years of age or older, the minor's attitude toward the implementation of family reunification services; and any other appropriate factors.
You may be held responsible for your child's actions. If a child willfully defaces or destroys property of another, causes injury to another or causes the death of another, the parent or guardian having custody or control of the child may be held responsible, along with the child, for the willful act. The maximum amount that any one parent or guardian will be held responsible for willful misconduct is $25,000 for each willful act of the child, and $25,000 in medical, dental and hospital expenses, in addition to any other liability imposed by law.(34) A parent or guardian having custody or control may also be liable for court costs and attorneys' fees, and up to $50,000 in damages if the minor defaced property. (Civ. Code, § 1714.1; Pen. Code, § 594.)
If damage was created by graffiti, parents are equally liable for the costs of
removal, repair and/or replacement of the property. (Gov. Code, § 38772.)
Parents who have signed a minor's consent form to obtain tear gas will be liable to
those victimized by such gas, as long as the gas was not used for the purpose of
self-defense. (Pen. Code, § 12403.8.) Parents will be asked to pay fines up to
$100 for their children's truancy. (Ed. Code, § 48264.5(a)(2).) Parents are liable
for up to $10,000 in damages and/or up to $10,000 in rewards for finding the
culprit where injuries to persons or property on school grounds have occurred.
(Ed. Code, § 48904.) If a child steals from merchants or steals books or materials from libraries, the parents are responsible for up to $1000. (Pen. Code, § 490.5.) Finally, parents must pay the transportation costs of children who are picked up for breaking curfew. (Welf. & Inst. Code, § 625.5.)
However, if your child is under 18 and causes injury or death to another by a gun that you permitted him or her to have or that you left in a place accessible to him/her, you may be held responsible for up to $30,000 if one person was injured or killed, or for up to $60,000 if two or more people were injured or killed. (Civ. Code, § 1714.3.)
There are a number of ways your child can cease to be your legal responsibility:
An adult child usually has an obligation, to the extent of his/her ability, to support a parent who is in need and unable to maintain himself/herself by work. (Fam. Code, § 4400.) The promise of an adult child to pay for such support is enforceable (Fam. Code, § 4401), and a parent, or the county on behalf of the parent, may bring an action to enforce this duty. (Fam. Code, §§ 4403-4405.) A child can be relieved of the responsibility to support a parent who abandoned him/her. (Fam. Code, § 4410 et seq.)
Under California law, the rights and responsibilities of adopted children and their parents are the same as those of natural children and their parents. (Fam. Code, §§ 8616 and 9305.) After adoption, the biological parents of an adopted child are generally relieved of all parental duties and responsibilities toward the child. (Fam. Code, §§ 8815, 9005 and 9306.) An adopted child may take the family name of the adoptive parent. (Fam. Code, §§ 8618 and 9304.)
However, there are a number of issues unique to adoption situations.
The person adopting a child (anyone under the age of 18) must be at least 10 years older than the child. However, if the adoption is by a stepparent, sister, brother, aunt, uncle or first cousin of the child, and if married, the spouse of the stepparent, sister, brother, aunt, uncle or first cousin, the court may approve an adoption without a ten-year age difference if it is in the best interests of the parties and the public. Any adult person may adopt any younger adult who is not his/her spouse. Under California law, you need not be married to adopt a younger adult. (Fam. Code, § 8601.)
Consent of both biological parents to an adoption is necessary unless:
The consent of a child, if over the age of 12 years, is necessary to the child's adoption. (Fam. Code, §§ 8814(d) and 9003.)
A person who is a minor may relinquish a child for adoption. (Civ. Code, §§ 224 and 226.1(d).)
Once consent is given for an adoption, it may not be revoked after a waiver of the rights to revoke has been signed or after 90 days, beginning on the date the consent was signed, whichever occurs first. (Fam. Code, § 8814.5.)
Your spouse may not adopt a child without your consent unless you are legally separated or are unable to give consent. (Fam. Code, § 8603.)
Under certain circumstances, the court can be petitioned to set aside an adoption within five years of entry of the order of adoption, where there is evidence of a pre-existing developmental disability or mental illness. (Fam. Code, § 9100 et seq.)
The birth parent may, at the time of adoption or later, authorize the California Department of Social Services to provide the person who has been adopted with the name and address of their birth parent when the person reaches the age of 21, if that person requests it and the birth parent has authorized it, or earlier, in the event of a medical necessity or other extraordinary circumstances. (Fam. Code, § 9203.)
Adoptive parents, persons who have been adopted and birth parents of adopted children may have access to DNA test results of blood samples stored pursuant to state law in connection with the adoption. (Fam. Code, § 9202.5.)
An adult adoptee, his/her natural parents, and his/her adopted parents, may sign a waiver of his/her rights with respect to the confidentiality of the adoption record. If this is done, the Department of Social Services or any licensed adoption agency may arrange a contact. (Fam. Code, § 9204.)
Upon written request, the Department of Social Services or any licensed adoption agency will release to the adoptee, if 18 or over, to the adoptive parents on the adoptee's behalf if he/she is under 18, or to the birth parents, any letters, photographs, or other items of personal property. Identifying names and addresses will be deleted from such documents. (Fam. Code, § 9206.)
An adopted person may file a request for contact with natural siblings and a waiver of confidentiality to grant siblings contact rights. The adopted person must be at least 21 for such a request to be made. If his/her siblings are also 21 or older and have filed such requests and waivers, if applicable, contact will be arranged. (Fam. Code, § 9205.)
In some other states, adoption records are sealed and may not be released to the birth parents or the adopted child. There are organizations that may be able to help you locate a birth parent or a child given up for adoption. Some of these are:
Post Adoption Center for Education and Research
The ALMA Society
(Adoptees' Liberty Movement Association)
Bay Area Chapter
It is illegal for anyone to pay a parent to place his/her child up for adoption, the consent to an adoption, or for the cooperation in the completion of an adoption. However, it is not illegal to pay maternity-connected medical, hospital and living expenses during and immediately after pregnancy. Such payment cannot be contingent upon placement of a child for adoption, consent to the adoption, or cooperation in the completion of the adoption, although it is a misdemeanor punishable by one year in jail or a $2,500 fine for a parent to obtain these financial benefits with the intent not to complete the adoption or consent to the adoption, or to obtain more expenses than incurred, or not to disclose that there are other families interested in adopting the child. (Pen. Code, § 273.)
You may be able to receive some financial assistance from the government if you choose to adopt a "hard-to-place child." For more information, contact the California Department of Social Services. (Welf. & Inst. Code, § 16115 et seq.)
If you and your child ever lived together, your child may still have some rights to inherit your property and the property of other blood relatives. (Fam. Code, § 9004.)
Artificial insemination involves the fertilization of a woman's egg using sperm from a donor. In some cases, the donor is chosen by the recipient. In other cases, an unknown donor is used.(38) Artificial insemination is one way for couples that cannot otherwise conceive children. It is also a way that single women can conceive.
Under the law, the husband of a woman who has been artificially inseminated by the semen of another man is usually treated as if he were the natural father of the child. In order for this to be true, the artificial insemination must have been done with the written consent of the husband and under the supervision of a licensed physician. (Fam. Code, § 7613.) A man involved as a semen donor in an informal insemination arrangement may establish that he is the child's father and may be able to acquire visitation privileges. He may also become liable for support. (Jhordan C. v. Mary K. (1986) 179 Cal.App.3d 386.)
In a Court of Appeal decision, Alexandria S. v. Pacific Fertility Medical Center, Inc. (1997) 55 Cal.App.4th 110, the court determined that a child conceived by artificial insemination by a donor could not sue the fertility clinic and the doctors for failing to certify the signatures on the consent form, pursuant to Family Code section 7613(a).
A surrogate mother is usually paid a set fee by a couple pursuant to a surrogacy contract to be artificially inseminated with the husband's sperm. Customarily, the contract is between the prospective biological father and the surrogate mother, with an intermediary fertility center, organization, or other party serving as a broker between the two parties. The contract provides that, after the delivery, the surrogate mother must give up her parental rights to the child, with the biological father receiving full custody rights. The husband of the surrogate mother also surrenders any claim to the child. Both the surrogate and her husband agree not to develop a parental relationship with the child. Paternity of the inseminating father is confirmed through genetic testing. The wife of the biological father is not a party to the contract. She adopts her husband's child upon the surrogate mother's relinquishment of her parental rights to the child.
Surrogate parenting agreements also may involve medical and psychological testing and screening of both surrogate and inseminating father, a review of the medical records of the surrogate mother's other children, and continued medical monitoring during the pregnancy. Contracts specifically may prohibit the surrogate mother from drinking alcohol, taking drugs or smoking, and may require that amniocentesis be performed. Contracts also may specify when the child is to be adopted and stipulate that the inseminating father and adoptive mother will take custody in the case of birth defects or multiple births.
Fees and expenses are delineated and the money is placed in escrow. Compensation of the surrogate mother in the event of a miscarriage and future attempts to impregnate the surrogate are also addressed. Most contracts provide for reimbursement for the surrogate's attorney fees and may include anonymity provisions. Some contracts include the surrogate's acknowledgment of the adopting couple's emotional investment in the arrangement, in an effort to provide the latter with legal recourse for intentional infliction of emotional distress should the surrogate mother renege on the agreement. The costs of surrogate parenting include a surrogate fee; a substantial broker's fee for legal representation; administrative scheduling and counseling costs; and maternity expenses.
The best known surrogate case to date is In the Matter of Baby M (Sup. Ct. N.J. 1987) 537 A.2d. 1227, in which the New Jersey Supreme Court declared surrogate parenting contracts unenforceable. California has not passed a law supporting or outlawing surrogate parenting.
In a recent opinion, Johnson v. Calvert (1993) 5 Cal.4th 84, the California Supreme Court held that although the Uniform Parentage Act (Fam. Code, § 7600 et seq.) recognizes both genetic consanguinity and giving birth as means of establishing a mother and child relationship, when the two means do not coincide in one woman, the one who intended to procreate the child is the natural mother under California law. In this case, a childless married couple and another woman entered into a contract whereby the embryo created by the gametes of the couple would be implanted in another woman's uterus. The court held that the surrogacy agreement, under which the childless couple became the parents in return for payment of a fee and purchase of a life insurance policy for the surrogate, was not inconsistent with public policy; no involuntary servitude was involved, and termination of the surrogate's claims to the child was not otherwise unconstitutional. In a California court case involving surrogate parenting, the Court of Appeal upheld a trial court's denial of a surrogate mother's petition to withdraw consent to adopt, and her motion to vacate a judgment of paternity. (In re Adoption of Matthew B.- M. (1991) 232 Cal.App.3d 1239.) The court held that the best interests of the child were its paramount concern. (Id. at p. 21.) The court did not attempt to resolve the debate over the desirability or validity of surrogate contracts. (Id. at p. 22.)(39) It determined that the petition to withdraw consent to adoption could be denied without enforcing an allegedly illegal contract; relied on case law indicating that courts normally refuse to intercede where the parties have fully performed under an illegal contract; determined that the parties knowingly assumed the risk of illegality in entering into the contract; and determined that the state's paramount interest in the child's welfare overrode its interest in deterring illegal conduct. (Id. at p. 25.) The court also rejected the surrogate mother's attempt to vacate the paternity judgment, given the surrogate mother's stipulation to the original judgment, her designation of the father as the natural father on numerous documents, and the fact that the father's sperm had been used to inseminate her. (Id. at p. 34.)
In another surrogacy case, In re Marriage of Moschetta (1994) 25 Cal.App.4th 1218, the Court of Appeal held that under Family Code section 7541(a) (question of paternity resolved according to blood tests), genetic parenthood established by blood tests overcomes the presumption under Family Code section 7540 that the child of a wife, cohabiting with her husband, is presumed to be a child of the marriage. The court held that with surrogacy, there was no need to resort to presumptions. Under the Uniform Parentage Act parentage was easily resolved, not in favor of the wife, but in favor of the biological mother, who did not consent to adoption pursuant to Family Code section 8814. The court remanded the matter for reevaluation as to whether the husband, who was in the process of divorcing the wife, should be awarded primary physical custody.
The Fourth District Court of Appeal ruled on a novel surrogacy issue in Buzzanca v. Buzzanca, ____Cal.App.4th ____, 98 Daily Journal D.A.R. 2436. The court held that a couple with no biological ties to a surrogate child were its legal parents because they caused the birth to take place by signing a contract, and that the newly declared father was required to pay child support.
1) the full and true name of the parent, together with any known aliases; 2) date and place of birth; 3) physical description; 4) social security number; 5) employment history and earnings; 6) military status and Veterans Administration or military service serial number; 7) last known address, telephone number, and date thereof; 8) driver's license number, driving record, and vehicle registration information; 9) criminal, licensing, and applicant records and information; and 10) any additional location, asset, and income information, including income tax return information and the address, telephone number and Social Security information obtained from a public utility. Back to link 24