Jacob A., v. C.H.; C064741, (Super. Ct. No. PFL2008-0012)

The California Third District Court of Appeal reversed the decision of the El Dorado Superior Court to deny the move-away of a mother on the grounds that the trial court’s order, “was based on incorrect legal assumptions and failed to address the legal issue presented by mother’s request to relocate with the child,” specifically, what custody arrangement would be in the child’s best interest. This decision was filed June 30, 2011.

The matter involved a post-judgment custody dispute in which mother wanted to move from California to Washington with the minor child. Third-party recommendations stated that even if mother was a better parent and potentially more attentive to the child’s medical issues (the child had diabetes), prolonged lack of contact with the father was deemed not in the best interest of the child. The court denied mother’s request to move to to keep the child accessible to father. The appellate court found this to be an abuse of discretion. Instead, the appellate court stated, the trial court should have assumed mother would be moving and made custody orders in the best interest of the child based on this new situation.

“…whether the minor’s counsel, the mediator, or it [the trial court] believes mother will not move without the child, is legally irrelevant. Mother has a right to move and she has decided to move; that is the premise from which the legal analysis must begin.”

“The decision to move a child away from one of his or her parents is one of the most difficult decisions a judge will ever have to make. Nevertheless, the decision cannot be avoided by coercing the moving parent into staying or prohibiting her from moving.”

The matter was remanded to the trial court for a new determination of custody and visitation. Mother was awarded her costs on appeal.

Full transcript of the Court’s decision can be found here.

For over 30 years, California Superior Courts have generally barred live testimony from the Courtroom in family law proceedings pursuant to the “Riefler/Stevenot rule” [Marriage of Reifler (1974) 39 CA3d 479 and Marriage of Stevenot (1984) 154 Cal.App.3d 1051] which allowed Judges to decide cases solely on the basis of written declarations. While procedurally convenient, it often excluded vital evidence from being heard.

All this changed as a result of the landmark Elkins decision [Elkins v. Superior Court, (2007) 41 Cal.4th 1337], in which the California Supreme Court Chief Justice held that there is a basic right to present live testimony in Family Court. “When the two policies collide head-on, the strong public policy favoring disposition on the merits outweighs the competing policy favoring judicial efficiency…A party’s opportunity to call witnesses to testify and to proffer admissible evidence is central to having his or her day in court,” Elkins stated.

The Elkins decision was codified in California Family Code Section 217, (amended 1/1/2011) which states:

217. (a) At a hearing on any order to show cause or notice of
motion brought pursuant to this code, absent a stipulation of the
parties or a finding of good cause pursuant to subdivision (b), the
court shall receive any live, competent testimony that is relevant
and within the scope of the hearing and the court may ask questions
of the parties.
(b) In appropriate cases, a court may make a finding of good cause
to refuse to receive live testimony and shall state its reasons for
the finding on the record or in writing. The Judicial Council shall,
by January 1, 2012, adopt a statewide rule of court regarding the
factors a court shall consider in making a finding of good cause.
(c) A party seeking to present live testimony from witnesses other
than the parties shall, prior to the hearing, file and serve a
witness list with a brief description of the anticipated testimony.
If the witness list is not served prior to the hearing, the court
may, on request, grant a brief continuance and may make appropriate
temporary orders pending the continued hearing.

As a result, San Diego County has changed its local rule 5.5.8(H), which outlined strict guideliness for requesting live testimony. It now essentially restates CFC §217:

H. Limitations on Evidence/Oral Testimony. If any party wishes to present oral testimony, written declarations must still be filed in a timely manner. The written declarations must be the direct testimony of the declarant. Written notice of the intent to present oral testimony must be served on the opposing party at least five court days before the scheduled hearing. The notice must state the name[s] of the intended witness[es] and the subject matter of the witness[es]‘ testimony. Failure to give the required notice will generally result in a denial of the request for oral testimony.

By Rivka Israel-Moss, Marcus Family Law Center, PLC

(originally appeared in Lavender Lens)

Q: What is “Registered Domestic Partnership” in California?

A: California finally recognized and granted rights to Registered Domestic Partners by passing the Domestic Partners Rights and Responsibilities Act of 2003. California classifies “domestic partners” as “two adults who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring.” In order to obtain these rights a couple must register with the State; registering with the County is INSUFFICIENT!

To register, a couple must:

• File a declaration of domestic partnership with the California Secretary of State.

• Share a “common residence” (regardless of ownership);

• Be at least 18 years of age; and of sound mind;

• Be either of the same gender, or of different genders but over the age of 62.

The couple may not:

• Be of close blood relation (California does NOT require blood tests);

• Be legally married, or in another domestic partnership that hasn’t yet been terminated.

  • If you’ve registered in the past with another partner, in another location, you must terminate that registration.

Q: What are some benefits of registering?

A: The major ones are:

If a private employer offers health insurance to the spouses of married employees, by law they also must offer the same insurance to the partners of employees in registered partnerships.

RDP confers upon each partner the right to receive support from the other, and likewise, the duty to support the other during the partnership. Upon a dissolution of the partnership, support is determined based on the same factors as apply to spouses. RDP confers the same “community property” rights regarding wages earned and property or debt acquired during the partnership as apply to a married couple.

RDPs have the right to hospital visitation and to make medical decisions and funeral arrangements for each other in California; however, these rights exist only within California and states recognizing our laws. RDPs should take every legal precaution available to ensure these rights will apply outside of California. This can be accomplished through the use of Advanced Health Care Directives and other legal means.

RDP status confers the legal “presumption” of parentage for both partners over children born during the partnership! Please note this is a presumption only, and can be rebutted. Post dissolution, the same custody, visitation, and support rights apply for the children of the partnership as would apply to spouses. This applies only within California or states which recognize California’s RDP statutes. This area of the law is still unstable, and RDPs should take every legal precaution possible to protect their family unit and their rights over their children. These can include 2nd parent adoptions, for example.

Q: What are some things to consider before registering?

A: The Federal Government does not recognize RDPs and, therefore, many rights which are conferred by the federal law do not apply to RDPs. Creating some confusion and inconsistency, as of 2007, RDPs are required to file California State tax returns as a married person, but to must file federal tax returns as single or Head of Household. RDPs are each responsible for debts incurred during the partnership. To dissolve your partnership, you will need to go through a formal Dissolution proceeding in family court unless you qualify for a “summary dissolution”. State registration is a public record. State benefits which commonly consider a spouse’s assets may consider a new partner’s assets, rendering the recipient ineligible.

At our firm, the concerns of most of our same-sex clients usually boil down to one thing: Children! These are complicated issues, and the law regarding this issue is still unstable. Having dealt with these issues both professionally and personally, I find helping my clients protect their family units, both in and out of Court, to be very rewarding. I’ve also helped many clients with children from prior relationships pursue child support from the other parent of their children.

Rivka Israel-Moss is an attorney with the Marcus Family Law Center. She can be reached at marcussd@barefootlawyer.com.