April 2021 Update
Summarized below are some of the more important developments since publication of the 2020 update that are included in the current update.
Child Custody Evaluations
For a thoughtful summary by Jessica Arner and Lydia Crandall of the impact of the COVID-19 pandemic on child custody evaluations, see §9.115A.
There are additional requirements associated with the appointment of an evaluator under Fam C §3118. Effective January 1, 2021, Additional Orders for Child Custody Evaluations Under Family Code Section 3118 (Judicial Council Form FL-327(A)) must be attached to FL-327. The additional orders specify numerous rights and responsibilities of the evaluator as well as the required contents of the evaluation. See discussion in §§9.28, 9.41, 9.116.
A deponent or a deposing party may choose to have a deposition officer attend the deposition by telephone or other remote electronic means. A deponent is not required to be physically present with the deposition officer when being sworn in at the time of the deposition. In addition, any party or attorney of record may, but is not required to, be physically present at the deposition at the location of the deponent, subject to any protective order issued by the court. CCP §2025.310. See §7.24.
The term “disturbing the peace of the other party” includes, but is not limited to, coercive control, which is a pattern of behavior that in purpose or effect unreasonably interferes with a person’s free will and personal liberty. Fam C §6320(c). See discussion 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. As of November 16, 2020, there are 13 emergency rules that have significant impact on the practice of family law, and which 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 practices in the counties in which they practice, and also check regularly the Judicial Council’s COVID-19 News Center for further updates and changes: https://newsroom.courts.ca.gov/covid-19-news-center.
The State Bar of California has issued an opinion addressing a lawyer’s ethical obligations with respect to unauthorized access by third persons to electronically stored confidential client information in the lawyer’s possession. See California State Bar Formal Opinion 2020–203 in §§7.2, 7.3.
The U.S. Supreme Court has addressed the standard for determining a child’s habitual residence, as well as the standard for reviewing that determination on appeal. Monasky v Taglieri (2020) __US__ 140 S Ct. 719. In Monasky, the Court held that a child’s habitual residence depends on the totality of the circumstances specific to the case, not on “categorical requirements such as an actual agreement between the parents.” The Court further held that a first-instance habitual residence determination was subject to deferential appellate review for clear error. See §4.21.
For a thorough summary by Leslie Ellen Shear of the impact of COVID-19 on parenting plans and the family law courts, see §4.2A.
Declarations filed in support of a request for order are intended only to give notice to the opposing party of the basis of the request, and are not automatically admitted into evidence. Therefore, unless the parties’ declarations are offered as evidence, marked, and subject to objections, they are not evidence the court may consider in resolving disputed factual issues. Marriage of Pasco (2019) 42 CA5th 585, 590. See §6.15.
When a party engages in conduct sanctionable under Fam C §271, the court may grant an award of attorney fees and costs while litigation is pending and even before such expenses have been incurred. Because “explicitly the stated purpose” of Fam C §271 is to promote settlement and cooperation in order to reduce the costs of litigation, one who contravenes this policy is exposed to liability for the costs and attorney fees of the opposing party that such conduct generates. Menezes v McDaniel (2019) 44 CA5th 340. See §19.48.