April 2022 Update
Summarized below are some of the more important developments since publication of the 2021 update that are included in the current update.
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 discussion in §4.24.
A restraining order from another state will trigger the rebuttable presumption if the out-of-state court found that a parent “perpetrated domestic violence” as defined in Fam C §3044(c), based on conduct occurring within 5 years of the custody determination. Noble v Superior Court (2021) 71 CA5th 567, 579. See §12.9.
Legislation effective January 1, 2022 adds to the definition of coercive control, which disturbs the peace of the other party in Fam C §6320 to include engaging in “reproductive coercion,” which consists of control over the reproductive autonomy of another through force, threat of force, or intimidation, and may include, but is not limited to, unreasonably pressuring the other party to become pregnant, deliberately interfering with contraception use or access to reproductive health information, or using coercive tactics to control, or attempt to control, pregnancy outcomes. Stats 2021, ch 135. See §12.11.
One appellate court has stated that depriving a parent of lawful access to their child “certainly may qualify as abuse” under Fam C §6320. See Marriage of F.M. & M.M. (2021) 65 CA5th 106, 121 n5 in §12.11.
Emergency Rules Related to COVID-19
The California Judicial Council adopted Emergency Rules to help the California state court system continue to operate in the midst of Governor Newsom’s March 19, 2020, statewide shelter-in-place order and the COVID-19 pandemic. Chief Justice Tani Cantil-Sakauye indicated that the emergency rules aim to “preserve the rule of law and protect the rights of victims, the accused, litigants, families, and children, and all who seek justice,” while also complying with the health directives put in place to respond to the pandemic. These emergency rules have a significant impact on the practice of family law, and may be found at the Judicial Council’s website: https://www.courts.ca.gov/documents/appendix-i.pdf. All attorneys should familiarize themselves with these rules, local rules, and regularly check the websites of the courts in counties in which they practice.
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 the concomitant psychological harm to the child, rendering the bench trial fundamentally unfair. Colchester v Lazaro (9th Cir 2021) 16 F4th 712, 726. See §20.3.
A district court erred on three counts in denying a father’s petition to return his child to France: (1) his alleged termination of financial support for the child was insufficient to establish his clear and unequivocal abandonment of the child, (2) no alternative remedies to protect child from father’s mental instability during time needed to allow the French courts to make a custody determination were considered, and (3) there was no evidence in the record addressing what specific pandemic-related risk returning child to France would present. Jones v Fairfield (In re ICJ) (9th Cir 2021)13 F4th 754, 761. See §20.3.
A trial court properly denied a Chilean father’s petition for return of children because he failed to meet the burden of establishing ameliorative measures that would protect the children from his excessive drinking and abusive behavior and mitigate the grave risk of harm to them. Marriage of Emilie D.L.M & Carlos C. (2021) 64 CA5th 876, 881. See §20.3.
Identification of Parties
Effective January 1, 2023, new legislation provides for name and gender changes (male, female, nonbinary) for public records, allowing parents to officially change their own names and gender identifiers, but to apply for such orders and obtain new birth certificates for minor children. Stats 2021, ch 577. See §4.15.
A trial court properly denied registration of a Chinese custody judgment because the father established that Chinese court, which had jurisdiction under the UCCJEA, stayed the Chinese judgment. Under Fam C §3424(b), the custody orders issued by the trial court thus remained in effect until valid order was obtained from the home state, which was China. Marriage of Wang & Zhou (2021) 62 CA5th 1098, 1106. See §5.19.
A grandparent’s residence in California alone is insufficient to confer continuing jurisdiction under the UCCJEA when the mother and child have moved out of state. A.M. v Superior Court (2021) 63 CA 5th 343. See §§5.27, 21.8.
In a parentage action, the court found that the mother’s husband was legally recognized as the father of the child, and that substantial evidence supported a finding that it would not be detrimental for the child to have only two parents because the biological Kelsey S. father lacked a relationship with the child. M.M. v D.V. (2021) 66 CA 5th 733. See §2.27.
For a thorough and updated summary by Leslie Ellen Shear of the impact of COVID-19 on parenting plans and the family law courts, see §4.2A.
Preference of Child
Legislation effective January 1, 2022 strengthens protections for children in court. The court may not permit a child addressing the court regarding custody or visitation to do so in the presence of the parties unless the court determines that doing so is in the best interests of the child and states its reasons for that finding on the record. Fam C §3042(f). The court must also provide an alternative to having the child address the court in the presence of the parties in order to obtain input directly from the child. If a child informs the minor’s counsel, an evaluator, an investigator, or a child custody recommending counselor that the child has changed their choice with respect to addressing the court, the minor’s counsel, evaluator, investigator, or child custody recommending counselor indicates to the judge, the parties or their attorneys, and other professionals serving on the case that the child has changed their preference. Fam C §3042(h). See §§8.50 12.33, 15.83.
Penal Code §632.7 prohibits parties as well as nonparties from intentionally recording a communication transmitted between a cellular or cordless phone and another device without the consent of all parties to the communication. Smith v LoanMe, Inc. (2021) 11 CA5th 183. See §4.75.
Legislation effective January 1, 2022 amends CCP §1010.6, related to electronic service. See §6.12A.
As of January 1, 2022, if a court awards unsupervised visitation to a parent about whom allegations of physical abuse or drug or alcohol abuse have been made, the court is required to state its reasons for awarding joint custody in writing or on the record even if the parties do not request it, unless the joint custody is pursuant to the parties’ stipulation (Fam C §3011(a)(5)). See §6.17A.
Comment 1 to Cal Rules of Prof Cond 1.1 was added by order of the California Supreme Court on March 22, 2021, setting forth an attorney’s duty to “keep abreast of the changes in the law and its practice, including the benefits and risks associated with relevant technology.” See §7.2.
Under Cal Rules of Ct 3.672, effective January 1, 2022, a party may choose to appear remotely for a nonevidentiary hearing in family law. If a party receives notice to attend a hearing at least 3 business days before the date of the hearing, a party can give notice of their intent to appear remotely.
Standards of Judicial Administration Rule 5.20, governing standards of practice for providers of supervised visitation, was amended effective January 1, 2022, and imposes additional requirements on the courts to adopt local rules and provide information regarding supervised visitation. See §4.78.