April 2020 Update
Summarized below are some of the more important developments since publication of the 2019 update that are included in the current update.
Child Custody Evaluations
An evaluation report concerning serious allegations of child sexual abuse under Fam C §3118 must include certain required elements and information, and, as of January 1, 2021, must be on the specific form template promulgated by the Judicial Council. See Fam C §3118(b)(6), (i). See §9.41.
Videographers and court reporters present at a deposition, while officers of the court, are not “court employees” to whom disclosure of a custody evaluation is permitted within the meaning of Fam C §3025.5(a)(2), nor is an attorney for a party who was not a party to the case in which the evaluation was conducted. Marriage of Anka & Yeager (2019) 31 CA5th 1115. See §§9.42, 9.116.
A wife’s conduct, attaching to her appellate brief several pages from the parties’ confidential brief evaluation report, was sanctionable under Fam C §3111(d), but sanctions were not imposed due to her minimal fixed income. Herriott v Herriott (2019) 33 CA5th 212. See §9.116.
Child Custody Determination; Factors
Legislation effective January 1, 2020, prohibits a court from considering the sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative in determining the best interest of the child. Fam C §§3011(b), 3020(d). See Stats 2019, ch 551. See §§1.64, 12.39.
A trial court’s determination that an older child’s severe medical condition was evidence of compelling circumstances warranting separation of younger children ignored established precedent that a child’s disability is not automatically evidence of such compelling circumstances. Marriage of McKean (2019) 41 CA5th 1083. See §12.43.
Child Custody; Changed Circumstances
After a final custody order is entered, a family court may not make a change-of-custody order without a finding of changed circumstances. Marriage of C.T. & R.B. (2019) 33 CA5th 87; Marriage of McKean (2019) 41 CA5th 1083. See §4.7.
In Rybolt v Riley (2018) 20 CA5th 864, the appellate court held that an order barring a visitation parent from attending the child’s extracurricular activities outside of the parent’s visitation time is not a custody modification requiring a changed-circumstances showing. See §4.7.
Enforcement under UCCJEA
California had the right to exercise jurisdiction under Fam C §3421(a)(2) after a court in Belarus failed to provide notice of a child custody proceeding to a parent under Fam C §3408. W.M. v V.A. (2018) 30 CA5th 64, 71. See §5.20.
Under the UCCJEA, the other state need not have concurrent jurisdiction in order for California to invoke the inconvenient forum doctrine under Fam C §3427. R.B. v D.R. (2018) 28 CA5th 108. See §5.25.
A California court lacked jurisdiction to rule on the custody modification request after receiving documents disclosing that father lived in North Carolina and that custody proceeding had been initiated in that state, even though the parties “stipulated” on the record in the California proceeding that California had jurisdiction to modify the North Carolina decree. Marriage of Kent (2019) 35 CA5th 487. See §21.12.
The trial court does not need to join an expert appointed under Evid C §730 as a party to the case in order to make an order regarding the expert’s fees. Marriage of Benner (2019) 36 CA5th 177. See §9.43.
For new sample language to include in a stipulation for an evaluator’s appointment waiving the prohibition on the evaluator’s ability to testify about “case-specific hearsay” as defined in People v Sanchez (2016) 63 C4th 665, see §9.118.
The United States Supreme Court has granted certiorari in Monasky v Taglieri (cert granted 2019) ___ US ___, 139 S Ct 2691, which presents two issues: (1) when an infant is too young to become acclimated to her surroundings, a subjective agreement between the infant’s parents is necessary to establish her habitual residence under the Hague Convention; and (2) the correct standard of review for a district court’s determination of habitual residence. The case was argued on December 11, 2019. See §4.21.
The Application Under the Hague Convention on the Civil Aspects of International Child Abduction (DS-3013) has been updated. See §20.34.
A father seeking to change an existing custody order and relocate his child to Arkansas had not met the burden to prove that changing physical custody would not detrimentally affect his son’s interest in continuity and stability, and that relocating his son was in the son’s best interest. Marriage of C.T. & R.B. (2019) 33 CA5th 87. See §18.10.
In C.A. v C.P. (2018) 29 CA5th 27, the appellate court granted the biological father’s petition seeking legal confirmation of his paternal rights to the child born to a married woman, creating a three parent family. See §§3.23, 11.34.
Effective January 1, 2020, the procedures and requirements under which a voluntary declaration of parentage may be established and challenged are modified. See Fam C §§7570–7581, operative January 1, 2020; Stats 2018, ch 876 (AB 876). See §§2.12–2.13.
The legislature eliminated the use of gendered pronouns in the Family Code (AB 1817 (Stats 2019, ch 115)) and made widespread changes in terminology in the Uniform Parentage Act (UPA) (Fam C §§7600–7730) to reflect gender neutrality. See AB 2684 (Stats 2018, ch 876); AB 1403 (Stats 2013, ch 510). Specifically, the legislature stated that the provisions of the UPA should be interpreted to provide equal treatment to same-sex parents, transgender parents, and their children. Stats 2018, ch 876, §1(c).
The 30-day statutory stay under CCP §917.7 commences on entry of the order for removal. If the court directs preparation of an Order After Hearing or Judgment, the 30day period begins on entry of the order itself, not on announcement of an intended decision. Lief v Superior Court (2018) 30 CA5th 868. See §§4.10A, 19.11.
A restraining order prohibiting husband from posting anything about his divorce on Facebook was found to be overbroad and infringed on his free speech rights. Molinaro v Molinaro (2019) 33 CA5th 824. See §12.11.
A request for sanction-based attorney fees under Fam C §271 is not a request for affirmative relief within the meaning of Fam C §213 and are therefore appropriately requested in a responsive pleading. Marriage of Perow & Uzelac (2019) 31 CA5th 984. See §§6.13, 19.48.