April 2023 Update
Summarized below are some of the more important developments since publication of the 2022 update that are included in the current update.
Legislation effective January 1, 2023, provides that if an individual or a couple provides 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 §2.15.
The court has a mandatory obligation to ensure access to legal representation under Fam C §2030(a)(1), thus a reasonably prompt ruling on a request for pendente lite attorney fees is required. Marriage of Knox (2022) 83 CA5th 15. A court’s failure to rule before trial was error. See §19.47.
Best Interest of Child
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 is 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. For discussion, see §1.67B.
In 2022, the Association of Family and Conciliation Courts updated its Guidelines for Parenting Plan Evaluations in Family Law Cases, which now includes guidance specific to virtual evaluations. See discussion at §§9.4, 9.109, 9.115A.
For an updated discussion of the COVID-19 pandemic and virtual custody evaluations, see §9.115A.
In Shenefield v Shenefield (2022) 75 CA5th 619, the court of appeal affirmed $15,000 in sanctions against an attorney for the unwarranted disclosure of a confidential custody evaluation because she filed her client’s (husband’s) declaration, which quoted from and referenced the contents of a confidential, court-ordered psychological evaluation undertaken during the wife’s previous marital dissolution. See §9.116.
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. Abdelqader v Abraham (2022) 76 CA5th 186. See §12.13.
A trial court abused its discretion when it found that the father had committed domestic violence against the mother and awarded her sole legal and physical custody, and then ordered a visitation schedule that amounted to “de facto” joint custody. City & County of San Francisco v H.H. (2022) 76 CA5th 531. See §12.13.
Electronic service is permitted in accordance with CCP §1010.6. The court may order electronic service on a person represented by counsel who has appeared in an action or proceeding under CCP §1010.6(b)(1). An unrepresented party in a civil action may consent to electronic service under CCP §1010.6(b)(2). See §6.12A.
Emergency Rules Related to COVID-19
California’s COVID-19 state of emergency ended February 28, 2023. See https://calmatters.org/health/2022/10/california-state-of-emergency. See also the Judicial Council’s website, https://www.courts.ca.gov/documents/appendix-i.pdf. All attorneys should familiarize themselves with state court rules, local rules, and regularly check the websites of the courts in counties in which they practice.
Gender-Affirming Health Care
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 §§5.20, 5.23, 5.26, 21.17A.
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) 596 US ___, 142 S Ct 1880. See §20.3.
In Ramsden v Peterson (2022) 76 CA5th 339, the court stated that courts are authorized “to appoint private counsel to represent the interests of children in custody and visitation proceedings” and that the Family Code permits minor’s counsel to make recommendations to the trial court “regarding custody, visitation and other issues relevant to their client’s interest.” See §10.20.