Recent Developments
This is
where we'll announce some recent changes in the law affecting Californians. We
provide a summary of some recent legislation and cases involving family law, estate
planning, and related topics. In some cases there is a link to the full court opinion.
This page was last updated
July 05, 2005
A case issued by the California Court of Appeal on 1-28-2000 has
introduced new confusion and uncertainty into certain paternity
cases. California law says that if a child is born to a married
couple while they are cohabitating and if he is not impotent or
sterile, that the husband is conclusively presumed to be the father
of the child. Under this law, Family Code section 7540, even if
you could prove that another man is the father, the court cannot do
anything but find that the husband, not the biological father, is the
legal "father."
In Brian C. v. Ginger K., the court has held that the U.S. Constitution
prevents the state from apply this conclusive presumption law when the
child has lived with and known no other father but the biological
father. Hence, Brian, who lived with the child and the mother for
several years as the child's father, is the legal father as well.
A case issued by the California Court of Appeal on June 3, 1999 provides new incentive
to the use of a Natural Death Act Declaration, also known as a Directive to Physicians.
Durate v. Chino Community Hospital (1999) No. E020473.
In this case Mrs. Duarte suffered a severe injury in a car crash and the doctors told
her family she would never recover the ability to think and function as a human being.
Her family instructed the doctors to terminate her life support. The doctors
and hospital refused. Mrs. Duarte died and the family sued the doctors for
negligence in not following their instruction to terminate life support.
The court held that under California law, a doctor is immune from liability for failing
to follow the instructions of a holder of a durable power of attorney for health care to
terminate life support. Likewise, a person who gives such an instruction without
benefit of such a power of attorney cannot sue a doctor who refuses to follow the
instruction as well.
In this case, Mrs. Duarte had executed neither a power of attorney nor a Natural Death
Act Directive. The Court pointed out that if she had signed such a directive, the
doctors would have been liable for failing to follow the directive unless they had a good
faith belief they were obeying the law and her instructions. To the contrary, under
the health care power of attorney laws, they were immune from liability for failing to
follow the instruction regardless what they believed.
Moral of the story: If you do not want life support in these circumstances, make
certain you execute a Natural Death Act Directive even if you have a Health Care Power of
Attorney as well. For more on this, see our Health Care
page.
The California Court of Appeal recently held that a custody/visitation plan cannot be
changed to accommodate a child's developmental needs. Marriage of Congdon, 82
Cal. Rptr. 686 (1999)(Unfortunately, we do not have the full opinion online at this time).
The facts in this case were that a couple shared custody jointly and the mother wanted
to move to be closer to work. This, plus a change in the schedules of the children
as they matured, were the basis of a request by mother to change the complex visitation
schedule. Unfortunately, mother did not give the court facts on which it could find
that there were changed circumstances sufficient to grant her request.
The court concluded that it could not change the original order merely because the
children had gone from age 3 to age 8. It required a showing of how that fact presented a
change in circumstances that made the original schedule not in the child's best interests.
It is difficult to say how much importance to give to this opinion of the Court.
The facts in this case were somewhat unusual. There is a conflicting opinion of
another court to the effect that where there is a joint, co-parenting plan, no changed
circumstances need be shown. That case is Marriage of Birnbaum, 211
Cal.App.3d 1508 (1989).
As with any situation, your facts deserve the individual attention of an attorney and
we urge you to seek legal counsel if you have circumstances like these.
The California Supreme Court has modified its position regarding whether overtime and
bonus pay are to be included in figuring income for purposes of support.
Previously, the Court had held that a parent could not be expected to continue working
overtime and/or getting bonuses and therefore such income amounts should be excluded when
figuring the amount of income to be used in computing child or spousal support.
The reasoning was that the courts should not force people to work more than a normal
work day. Often one parent had been working excessive hours in a vain attempt to
cover the increased cost of a two household situation after separation. This is
especially common after a divorce, when a parent finds that after paying support, he or
she does not have enough to live on. They work around this by adding hours and
sometimes a second job.
With this ruling, the court has said that if the parent does this, the additional hours
can, in effect, be forced upon the parent because the income will now be included when
figuring the amount of support.
The overworked parent can refute this by showing that the extra hours are no longer
available. But if the parent voluntarily decreases their hours to a normal level,
the court can "impute" the extra income to them as though they were earning it
and base the support on the higher level of income, whether actually earned or not.
This is a disturbing decision which indicates once again that California's family laws
are having a difficult time keeping in touch with reality.
For the full text of this case, click on
Andrade.
(Click for full text of case)
In a long awaited decision, the California Supreme Court has changed the rules for when
a custodial parent may change the residence of minor children after a divorce. The case,
Marriage of Burgess, now permits the custodial parent to move to a new location, even when
that is inconvenient for the non-custodial parent, so long as it is in the best interests
of the child(ren). Previously, the custodial parent had to prove that the move was
necessary and not just convenient. In practical terms, where the children reside with one
of the parents, and that parent has an opportunity to get a better job in another city or
state, it will be difficult for the non-custodial parent to block the move or change
custody because of it.
In fact, the burden is now on the non-custodial parent to prove that the move is not in
the best interests of the child(ren) before a court can either change custody or block the
move, except where there has been joint physical custody. In such cases, the party seeking
to move will have the burden of proof.
While the Court did not have before it the issue of whether the parties can restrict
the right to move away in a written marital settlement agreement, it would seem that this
factor might make a difference.
The argument would be that if the parties enter into an agreement regarding custody and
visitation, including a restriction on move-aways, a subsequent move would, in itself,
provide the grounds for a request to change custody.
It is unknown, however, whether the Court would give much weight to this restriction,
since the standard for its decision will remain the "best interests of the
child". The Court in Burgess gives great significance to the "stable and
emotional ties" of the child in preserving custody with the same parent, even when a
move occurs.
If you are either contemplating a move or are faced with a situation where the other
parent is contemplating a move, we would be happy to discuss your options with you. At the
very minimum, such a move will require a change in visitation arrangements and it will
often be the case that the additional cost of visitation may be assigned to the moving
parent.
In a new case, the California Court of Appeal has held that under certain
circumstances, an unmarried partner, not named in the deceased's Will, may have rights to
inherit from the deceased.
The case of Gladys Byrne v. Charon Laura, decided February 18, 1997, charts new ground in
this regard. Ms. Byrne (Flo) lived with the deceased, Skip, for 5 years and held
themselves out to be man and wife. When they moved in together, they commingled their
furnishings, purchased new items together, and opened a joint bank account.
Skip told Flo when she moved into his house that it "was our home, and anything I
have is yours." She told him that "everything I have is yours." Skip
promised Flo that he would take care of her for the rest of her life in exchange for her
services as homemaker. He told this to friends and relatives as well. Flo worked for a
while and contributed all her earnings to the household and Skip paid for her living
expenses, including her credit card and spending money. He made her the beneficiary of his
retirement benefits. Skip retired one year prior to his death.
They decided not to marry because of economic reasons, although Skip had planned to
surprise Flo with a wedding on a trip that was interrupted by his death. He repeatedly
said that he was going to put everything into joint ownership, but was a procrastinator
and never did so.He left an estate worth $1.2 million and a will made prior to meeting Flo
leaving everything to relatives, all of whom predeceased Skip.
Flo contended she was entitled to inherit his estate.
The Court held:
- Flo had a right to enforce the promise to support her for the rest of her life against
Skip's estate
- Flo could enforce the verbal agreement whereby Skip promised to put her name on the
title to all his property in exchange for her services as homemaker
- Flo had the right to effectively seize the assets of the estate and use them to satisfy
her claims.
Under the right conditions, it is possible to "get married" without getting
married. Flo got the best of both worlds -- she got Medicare benefits as an
unmarried woman and inheritance rights as a married woman. But beware! This outcome
might not be the same if you aren't Flo. She presented to the Court a very sympathetic
situation which made it easy to rule for her. What the outcome would have been for
two gay lovers is anyone's guess.
A recent case has held that, when figuring how much is available for child support, the
Court will not give credit for support the parent is giving to his own parents.
The mother sought to increase child support. The father argued that he should get a
special "Hardship" reduction based upon amounts the father paid for his mother's
living expenses, without which she would be destitute.
The Court did point out that it might have a different opinion had the father not been
able to afford both an increase in child support and payments to his mother. It
might consider such a situation a "special circumstance" which gives the court
additional discretion.
A recent Orange county case has caused quite a stir in Family Law circles.
John had raised two children as his own for several years. The couple parted and during
the divorce, Jane tells John he isn't the father of the children. John asks that he be let
out from any child support obligation.
The Court orders a blood test. Jane was right, he wasn't the father.
The Court said that because of the blood test, it would not apply the presumption that
John was the father (applied to all children born during a marriage). Instead, it would
follow the blood test results and John had no rights nor obligations with regard to the
kids. Expect to see more litigation on this point.
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Seems to be a theme here. The California Supreme Court has held that
where a man fathers a child but the mother is married to another man, the father has no
parental rights even when he wants to pay support and establish a relationship.
Citing California statutes (California Family code Section 7600) regarding
presumptions about paternity, the Court held that because the mother was married, the actual
father has no rights and the man to whom the mother is married is the legal
father, with all the rights and responsibilities connected with that status.
The Court further held that the legislature had placed a higher value on
family stability (the mother and non-father father, who had accepted the child into the
family) than on protecting the rights of the father.
We have some doubt that the same outcome would arise in a case where the
non-father refused to pay child support after a divorce and the court was faced with a
willing payor in the person of the actual father. We shall see, however.
Dawn v. Superior Court, Sup. Crt. No. S 060966.
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Another new case from the California Supreme Court has held that a
spouse's reimbursement right for a separate
property contribution to community property carries through
to other property purchased with the proceeds from the original property.
Hence, if A owns a house prior to his marriage to B, and during the
marriage they use community funds to pay off the mortgage on A's house, the community is
entitled to be reimbursed for it's funds used for the benefit of A's property.
Further, if A sells his house and uses the proceeds to buy house 2, the right of
reimbursement attaches to that house as well.
The facts in this case were much more complex, but this is the gist of the
ruling. Marriage of Walrath, Sup. Crt. No. S 059170.
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