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Custody cases often produce custody evaluations and other sources of sensitive information. As such, certain documents may be deemed confidential and both parties are prohibited from disclosing any information in the document. If a party, or his or her attorney, discloses information in a confidential document it can result in adverse consequences.

This was illustrated in a recent case decided by a California appellate court, in which the court imposed sanctions on a wife’s attorney for revealing information contained in a confidential custody evaluation. If you are involved in a custody dispute, it is important to retain an experienced California family law attorney who will act in the best interest of both you and your child.

Facts Regarding the Divorce Actions

The wife had a child with her first husband. They divorced but were engaged in an ongoing custody dispute. The court ordered a custody evaluation and a psychological evaluation. The wife then married her second husband and gave birth to a second child. The second marriage dissolved, but the custody issue was unresolved. The first husband filed an affidavit in support of the second husband in the second action, alleging that the wife engaged in substantial misconduct involving both children.

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In a divorce proceeding, Family Code 2104 tells us what each party must disclose to the other party in order to advance the divorce case to a settlement conference or a trial:

(1) Each party shall serve on the other party a preliminary declaration of disclosure, executed under penalty of perjury on a form prescribed by the Judicial Council.  The commission of perjury on the preliminary declaration of disclosure may be grounds for setting aside the judgment, or any part or parts thereof, pursuant to Chapter 10 (commencing with Section 2120 ), in addition to any and all other remedies, civil or criminal, that otherwise are available under law for the commission of perjury.  The preliminary declaration of disclosure shall include all tax returns filed by the declarant within the two years prior to the date that the party served the declaration.

(2) The preliminary declaration of disclosure shall not be filed with the court, except on court order.  However, the parties shall file proof of service of the preliminary declaration of disclosure with the court.
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I am often asked, “What should I do to prepare for Family Court Services Mediation?”  The following are some tips to help you maximize your success at Family Court Services:

1. In custody disputes each party often tries to point the finger at the other party saying, “He is this” or “She did that”…  While putting down the other party may make you feel good, it will annoy or alienate the mediator. Don’t do it.

2. The focus of mediation has to the the child.  What is best for the child or in the child’s best interest.  Always focus on the child.  What is the child’s daily schedule?  Why is your proposed visitation schedule best for the child?  Why are your requested orders beneficial for the child? Why is the other party’s request bad or detrimental for the child?  Remember, the focus is not the other party. It is the child.

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By Ethan M. Weisinger

A client recently asked me, “What do I do about the enforcement of a child support order when both parents have moved out of the state where our child support order was made?”

     Under the Uniform Interstate Family Support Act (“UIFSA”, codified at California Family Code §4900, et. seq.), the concept of Continuing Exclusive Jurisdiction (“CEJ”) determines which State has the authority to modify a child support order. UIFSA’s “Controlling Order” is the order to be prospectively enforced. When multiple child support orders exist in a single case, it is necessary to determine CEJ and identify which order is the Controlling Order. Pursuant to UIFSA and Family Code §4909(d), “a tribunal of this state shall recognize the continuing, exclusive jurisdiction of a tribunal of another state which has issued a child support order pursuant to this chapter or a law substantially similar to this chapter.” The choice-of-law rule for the interpretation of a registered order is: the law of the issuing State governs the underlying terms of the controlling support order, with one exception, and that is if the registering and issuing State have different statutes of limitation for enforcement, the longer time limit applies. (UIFSA §604). In California there is no statute of limitations for collection of child support. Therefore a parent can seek child support arrears even after the child has grown to be an adult.

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It is not uncommon for either party in a divorce or custody proceeding to seek a modification of a court order. The non-moving party is entitled to respond to any request for a modification and can request affirmative relief. The non-moving party is not permitted to request relief that is not an alternative to the relief requested by the moving party, or that does not arise out of the same issues, however, as recently explained in a case arising out of a California Court of Appeals.  If you are in the process of deciding to end your marriage and you must determine a custody arrangement, it is important to retain an experienced California divorce attorney to assist you in protecting your rights.

Factual and Procedural Scenario

Husband and wife were married in November 2000. The wife knew the husband had been convicted of a sex crime, but she did not know the details of the crime, which was that he molested his stepdaughter from the time she was eight to twelve years old. The parties had a daughter in 2007 and separated in 2008. The wife filed for divorce in 2009 and sought custody of the daughter. The marriage was dissolved in 2010. The parties stipulated to share legal custody of the daughter, with the wife having primary physical custody. The father’s physical custody was limited to seven to twelve and a half hours weekly.

It is alleged that the husband filed a petition for modification, seeking a fifty-fifty split of physical custody. The wife filed three pleadings in response, in which she requested attorneys fees and costs associated with responding to the husband’s petition, and asked the court to require the husband’s custody time to be monitored, due to his prior criminal history. The court denied the husband’s request for a modification but granted the wife’s request for monitoring of the husband and for attorney’s fees. The husband appealed.

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If you intend to seek a divorce, it is essential that you retain an attorney who is knowledgeable in drafting settlement agreements, to avoid unknowingly agreeing to terms that may put you in an unfavorable position in the future. Even if an agreement seems appropriate under your current circumstances, it is important to consider how any change in circumstances could affect your obligations and rights under the agreement. The failure to properly allow for modifications in your favor in the future can result in an increase in financial obligations.

A California Court of Appeals recently held that a marital settlement agreement that required a substantial increase in a wife’s support obligation had to be followed despite a material change in circumstances.  If you wish to dissolve your marriage, it is in your best interest to consult a California divorce attorney as soon as possible, to assist you in seeking a settlement agreement that protects your rights now and in the future.

Facts Regarding the Marriage and Separation

Reportedly, husband and wife were married for over 18 years and had two children together. They separated in 2012 and in 2014 dissolved their marriage. A marriage settlement agreement (MSA) and post-judgment stipulation (PJS) were incorporated into the terms of the court’s order dissolving their marriage.  The MSA provided that the wife would pay the husband $850 in monthly spousal support, plus 10% of any income she earned per year in excess of $180,000. The MSA also provided that either party could petition the court to modify the spousal support, after which the court would be obligated to consider the income of the parties at the time of the separation. Additionally, the wife agreed to notify the husband if she changed jobs. The PJS subsequently reduced the amount of support payments owed by wife on a sliding scale.

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Under California law, any property obtained during a marriage is presumed to be community property. The California Family Code allows for parties to change community property to separate property in certain circumstances, however.

Recently, an appeals court in California held that an interspousal transfer grant deed contained the necessary language to constitute a transmutation of the character of marital property. If you intend to seek a divorce, you should meet with an experienced California divorce attorney to assess the nature of any property obtained by you or your spouse during the marriage.

Ownership of the Property in Question

The husband and wife married one another in January 2010. In May 2010, the wife reportedly purchased a condo. The deed from the seller allegedly transferred the condo to the wife as “a married woman as her sole and separate property.” That same month, the husband signed an interspousal transfer grant deed (ITGD) granting the condo to the wife as her sole and separate property. The money used for the down payment on the condo was from the husband’s separate bank account. The husband filed for divorce in August 2011. The wife claimed the condo was her separate property based on the ITGD. The husband insisted the condo should be his separate property, however, because he paid for the down payment.

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While some people think of a child as only having two parents, that is not always the case. Custody disputes can be acrimonious and complex, but when there are three parties seeking parental rights in a custody case, determining an appropriate custody arrangement can be especially complicated. The guiding concern in all custody cases, however, is what is in the best interest of the child.

In a recent case arising from a California Court of Appeals, the court held that due to the child’s bond with three different adults, each adult should be legally recognized as the child’s parent. If you and your child’s co-parent cannot agree on what custody arrangement is in your child’s best interest, you should retain a skilled California child custody attorney to assist you in your pursuit of a suitable custody agreement.

Factual Background 

Reportedly, the husband and wife in question were married when the wife conceived a child with her coworker. The husband and wife remained married but allowed the coworker to have a parenting role with the child. The child subsequently developed a bond with the coworker and his family. The husband and wife then excluded the coworker from the child’s life, after which the co-worker filed a lawsuit seeking parental rights.

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