Selected Developments
2023 Update
Summarized below are some of the more important developments included in this update since the publication of the 2022 edition.
Appeals, Writs, and Attaches on Judgment in Trial Court
A trial court order denying a vexatious litigant’s request to file new litigation under CCP §391.7 is not appealable. Marriage of Deal (2022) 80 CA5th 71. See §19.9.
Attorney Fees, Sanctions, and Professional Responsibility
Because the family court has a mandatory obligation to ensure access to legal representation under Fam C §2030(a)(1), a reasonably prompt ruling on a Fam C §2031 request for pendente lite attorney fees in a marriage dissolution proceeding is required. A court’s failure to rule before trial is error. Marriage of Knox (2022) 83 CA5th 15. See §§9.2, 9.3, 11.5.
The bar to overcome CCP §128.7 sanctions is “relatively low.” Unless there is a finding that a motion is completely without merit (i.e., any reasonable attorney would agree that such a motion is totally devoid of merit), sanctions should not be imposed. Kumar v Ramsey (2021) 71 CA5th 1110. See §9.5.
Bankruptcy
Legislation passed in September of 2022 and effective January 1, 2023, amends CCP §703.140(a)(2) and eliminates the need for the nonfiling spouse to consent to exemptions in writing if the spouses are living separate or apart. See Stats 2022, ch 716. Prior to January 1, 2023, if there is no consent in writing (or a spouse will not sign the consent), the bankruptcy trustee can object to the exemptions selected, leaving assets for the trustee to liquidate. If the spouses attempt to use the same exemption for different assets, CCP §703.110(c) permits the court to resolve the dispute. See §22.10.
A significant legislative oversight was corrected by SB 1099 (Stats 2022, ch 716). Prior to January 1, 2023, CCP §§704.010–704.210 contained no exemption whatsoever for support payments. Effective January 1, 2023, the exemption for support payments now mirrors that of the §703 exemption for support. See §22.52.
Child Custody
In a Hague case, a district court abused its discretion in refusing a mother’s request for the appointment of a forensic psychologist to examine her child and provide expert opinion regarding her allegations of abuse and concomitant psychological harm to the child, rendering the bench trial fundamentally unfair. See Colchester v Lazaro (9th Cir 2021) 16 F4th 712, in §7.4B.
The United States Supreme Court has found that if a court finds that returning a child to a foreign country would expose the child to a grave risk of harm, it is not categorically required to examine all possible ameliorative measures before denying a Hague Convention petition for such return. A court reasonably may decline to consider ameliorative measures for many reasons, including that they were not raised by the parties, are unworkable, draw the court into determinations properly resolved in custodial proceedings, or risk overly prolonging return proceedings. Golan v Saada (2022) 562 US ___, 142 S Ct 1880. See §7.4B.
For a new Practice Tip related to international child custody orders (foreign travel orders), the inconsistent application of the Hague Convention across nations, adoption, and the UN Convention on the Rights of the Child, see §7.4B.
Effective January 1, 2023, SB 107 (Stats 2022, ch 810) amends sections of the Uniform Child Custody Jurisdiction and Enforcement Act (Fam C §§3400–3465) in numerous ways, including prohibiting the enforcement of a law of another state that authorizes a state agency to remove a child from their parent or guardian based on the parent or guardian allowing their child to receive gender-affirming health care or gender-affirming mental health care, prohibiting a court from finding that it is an inconvenient forum where the law or policy of another state that may take jurisdiction limits the ability of a parent to obtain gender-affirming health care or gender-affirming mental health care when the provision of such care is at issue in the case before the court, authorizing the court to take temporary jurisdiction because a child has been unable to obtain gender affirming health care, and prohibiting a court from considering the taking or retention of a child from a person who has legal custody of the child, if the taking or retention was for obtaining gender-affirming health care or mental health care. For discussion, see §§7.7, 7.9A, 7.12, 7.13.
A trial court abused its discretion by ordering a visitation schedule that amounted to “de facto” joint custody after finding father committed domestic violence against mother and awarding sole legal and physical custody to mother under Fam C §3044. City & County of San Francisco v H.H. (2022) 76 CA5th 531. See §7.23.
If the court determines that the presumption in Fam C §3044(a) has been overcome, it must state its reasons in writing or on the record as to why Fam C §3044(b)(1) is satisfied and why the factors in Fam C §3044(b)(2), on balance, support the legislative findings in Fam C §3020. See Abdelqader v Abraham (2022) 76 CA5th 186, in which the trial court erred in failing to state reasons it found Fam C §3044 presumption rebutted, either on the record or in writing, in §7.23.
A trial court erred in failing to inform the parties of Fam C §3044’s existence and in failing to provide them with a copy of the statute, despite knowing that mother had obtained out-of-state restraining order against father and being presented evidence of domestic violence. See Noble v Superior Court (2021) 71 CA5th 567 in §7.23.
Legislation effective as of January 1, 2024, states that if a court finds that the effects of a parent’s, legal guardian’s, or relative’s history of or current mental illness are a factor in determining the best interest of the child under Fam C §3040(a), the court must (1) provide the parent, legal guardian, or relative with a list of local resources for mental health treatment; and (2) state its reasons for the finding in writing or on the record. (Stats 2022, ch 385). See Fam C §3040(d)(1). This legislation also created a new statute, Fam C §211.5, which requires the family law court to provide a self-identified veteran with a list of resources for veterans, including information about how to contact CalVet. See §7.26A.
In Shenefield v Shenefield (2022) 75 CA5th 619, the court clarified that Fam C §3111 authorizes the imposition of sanctions against an attorney as well as parties, and described the court’s general equitable power over attorneys as officers of the courts. See §7.49.
Child Support
As an alternative to imputing income, in Haley v Antunovich (2022) 76 CA5th 923, the court of appeal affirmed a trial court order requiring a child’s mother to seek work as an appropriate exercise of discretion. The court found substantial evidence that order was in the best interest of the child and was consistent with various principles in Fam C §4053, including that each parent should pay for the support of the child according to the parent’s ability. See §8.10B.
New Fam C §4058(c), effective January 1, 2023, prohibits the court from considering incarceration or involuntary institutionalization as voluntary unemployment in establishing and modifying support orders (Stats 2022, ch 573). In addition, every money judgment or order for support of a child shall be suspended, by operation of law, for any period exceeding 90 consecutive days in which the person ordered to pay support is incarcerated or involuntarily institutionalized, unless the person owing support has the means to pay support while incarcerated or involuntarily institutionalized. Fam C §4007.5(a). See new §8.10C.
Domestic Violence
Effective January 1, 2023, newly added Fam C §6344 provides that after notice and a hearing, the court, on request, may issue an order for the payment of attorney fees and costs for a prevailing respondent only if the respondent establishes by a preponderance of the evidence that the petition or request is frivolous or solely intended to abuse, intimidate, or cause unnecessary delay. Fam C §6344(b). Before a court awards attorney fees and costs, however, it must first determine that the party ordered to pay has, or is reasonably likely to have, the ability to pay under Fam C §270. Fam C §6344(c). Stats 2022, ch 591. See §11.5.
Effective January 1, 2023, “Calley’s Law” adds §6323.5 to the Family Code, authorizing a court to include in an ex parte order a provision restraining a party from accessing records and information pertaining to the health care, education, daycare, recreational activities, or employment of a minor child of the parties. The new law requires an essential care provider, as defined, to develop protocols relating to compliance with that order on or before February 1, 2023, and will require a discretionary services organization, as defined, to develop those protocols within 30 days of receipt of the first order. Calley’s Law will require the Judicial Council to develop or update any other forms or rules of court that are necessary to implement these provisions. Stats 2021, ch 129. See §11.6.
A trial court failed to consider the mandatory factors of Pen C §836(c)(3) when considering mutual restraining orders, namely the intent of the Domestic Violence Prevention Act and other laws protecting victims of domestic violence from continuing abuse, whether either party made the threats to the other creating fear of physical injury, and the history of domestic violence between the parties in K.L. v R.H. (2021) 70 CA5th 965. See §11.6.
Emergency Rules Related to COVID-19
The Judicial Council of California has enacted changes to the California Rules of Court due to the COVID-19 pandemic. The latest version of the emergency rules may be found at https://www.courts.ca.gov/documents/appendix-i.pdf. Practitioners should frequently consult local rules for any county-specific emergency rules, as these pandemic-related rules are temporary and subject to change over the course of the pandemic. Most California courts post current information regarding local rules on their websites. The rules are included in the text of this title as appropriate.
Evidence
A trial court properly admitted wife’s audio recording of meeting with her husband and his attorney because the attorney was aware of wife’s protective order and its terms, which allowed wife to record communications with her husband. See Shenefield v Shenefield (2022) 75 CA5th 619 in §25.12.
For a new Practice Tip regarding the presentation of electronic evidence at a family law hearing or trial, see §25.27A.
For a new Practice Tip regarding the collection of evidence using Google alerts, see §25.56.
Immigration Issues in Family Law
Effective April 7, 2022, United States Citizen and Immigration Services (USCIS) announced new policies and updated regulations to clarify special immigrant juvenile status eligibility criteria. These protect petitioners who turn 21 while their petition is pending and ensure that eligible victims of parental abuse, neglect, or abandonment receive Special Immigrant Juveniles (SIJ) classification and a pathway to apply for lawful permanent residence. The updated regulations also make clear that petitioners cannot be required to contact their alleged abuser while USCIS makes a decision in their SIJ case. See §26.38.
For guidance from the California Supreme Court regarding the statutory requirements governing California courts’ issuance of special immigrant juvenile predicate findings, see Guardianship of Saul H. (2022) 13 C5th 827. See §26.38.
Judicial Council Forms and Court Rules
Revised Judicial Council forms and California Rules of Court have been inserted throughout the text.
Jurisdiction
In Marriage of Thompson (2022) 74 CA5th 481, a husband’s first-in-time theory failed because it applies only when the court has acquired both in rem and in personam jurisdiction over the respondent. See §4.4.
Parentage
In Adoption of E.B. (2022) 76 CA5th 359, the court found that in an adoption to add a third parent, Fam C §7612(c) does not apply and no existing relationship is required to add a third parent if the existing parents agree to same. Adding additional parents in an adoption is governed by Fam C §8617. See §8A.25.
Legislation effective January 1, 2023, provides that if an individual or a couple provide an embryo for use in assisted reproduction to an intended parent who is not the provider’s spouse or nonmarital partner, the provider will not be found to be the natural parent of a child thereby conceived unless the court finds satisfactory evidence that the provider and the intended parent intended for the provider to be a parent. Fam C §7613(d)(1). If the provider of ova, semen, or embryos is not the original source of the ova or sperm, each original provider’s written consent to the donation is required unless that person has executed a writing consenting to, waiving, or relinquishing their right to the genetic material, or as otherwise ordered by a court of law. Fam C §7613(d)(2). Stats 2022, ch 179. See §8A.28.
Parentage actions filed after January 1, 2023, and their related hearings are not confidential unless they are to establish parentage under Fam C §7613, §7630(f), or §7960 (for assisted reproduction or surrogacy). Parentage actions filed prior to January 1, 2023, and their related hearings are still confidential. See §8A.46.
For a discussion of the statutory purpose of ensuring that each party has access to legal representation underlying the “related” language of Fam C §7605(a), see C.T. v K.W. (2021) 71 CA5th 679. In that case, the court remanded the case to the trial court to determine whether a mother who was the subject of a domestic violence restraining order might be entitled to attorney fees under Fam C §7605 based on a needs-based criteria as custody was being litigated in a domestic violence action. See §8A.47.
Procedure
California law will render a bigamous marriage void under Fam C §2201(a) even if it is valid in a foreign jurisdiction. Marriage of Elali & Marchoud (2022) 79 CA5th 668. See §3.9.
Records previously sealed may, in rare circumstances, be unsealed. For a case in which the California Attorney General’s office moved to unseal financial records related to trustees’ compensation from a nonprofit organization in a divorce action under Cal Rules of Ct 2.550 and 2.551, see Marriage of Tamir (2021) 72 CA5th 1068, discussed in §10.72.
Professional Responsibility
Although Cal Rules of Prof Cond 1.2 permits clients to provide their attorneys advance authorization to settle a case, it does not permit an attorney to settle a case over the client’s contemporaneous objection. An attorney who does so will run afoul of the conflict of interest provisions of Cal Rules of Prof Cond 1.7(b) and the State Bar. Amjadi v Brown (2021) 68 CA5th 383. See §23.7.
Property
In a probate context, the community property presumption of Fam C §760 did not prevail over the form of title presumption in Evid C§662, because that holding pertained to actions between spouses, and the default rule is that form of title controls at death. Estate of Wall (2021) 68 CA5th 168. See §5.19.
In Marriage of Ramsey & Holmes (2021) 67 CA5th 1043, the trial court erred by using the total amount of mortgage payments when calculating the community property interest in a house, when evidence showed that a significant portion of the payments went to interest, taxes, and insurance. See §5.25.
Under Fam C §1612(a)(7), the court retains the power to shape public policy regarding premarital spousal support agreements executed between 1986 and 2002, to the extent they are not inconsistent with legislative declarations of such policy, and to declare that a premarital spousal support agreement is unenforceable as against public policy solely because it is unconscionable at the time of enforcement. Marriage of Zucker (2022) 75 CA5th 1025. See §5.27.
Putative Marriage
In Marriage of Aviles & Vulovic (2022) 79 CA5th 694, the putative spouse doctrine was applied to a person who believed—mistakenly but in good faith—that her previous marriage had been dissolved, such that her subsequent marriage was treated by the court as valid and not bigamous. See §3.19.
Spousal Support
There is no requirement that the court make a finding on each factor in Fam C §4320, as the law only requires that the record reflect the court “considered” those factors. Marriage of Diamond (2021) 72 CA5th 595. See §6.10.
