- In This Issue -


Volume 4, Number 2 • July 2013 • Archive of Past Issues
Family Law Home Page

Message from the Editor

Raymond R. Goldstein

In this edition of E-News, our outgoing chair, Lynette Berg Robe, gives her farewell message and offers some parting words as she hands the torch to Seth Kramer; our Family Law Presiding Judge, Scott M. Gordon, takes the role of the optimist and discusses some of the positive changes that have occurred as a result of the budget crises; past chair, Robert Brandt, offers his views relative to the current strength and vitality of the family law section; Peter Walzer presents a touching memorial to his father, attorney Stuart B. Walzer, who passed away last May; Peter S. Muffoletto of Muffoletto & Company writes about a recent U.S. Tax Court opinion denying the alimony deduction sought by the paying spouse; and Joseph Spirito provides a recap of, and photographs from, the May 11 Listserv party. As always, announcements, events, case summaries, and summaries of recent legislation are included.

The original content presented below has been published after submission from members of the family law section. Any member may submit a piece for publication, and I would encourage submissions from any member with original material they would like to share with the other members. As always, do not hesitate to contact me with your comments or suggestions.

Raymond R. Goldstein
Editor, E-News
Goldstein@EnforceSupport.com

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Message from the Chair

Lynette Berg Robe

As “they” say, “All good things must come to an end.”  I have enjoyed my year as Chair of the LACBA Family Law Section.  This will be my last Chair’s message, as this is the last e-news of my term.  On July 1, 2013, I will be passing the torch to my able friend and colleague Seth Kramer.

I am proud of the accomplishments of the Family Law Executive Committee and the Family Law Section during the 2012-2103 term.  The Family Law Section’s many activities have supported our Mission Statement as set forth below:
           
The Family Law Section is committed to:

  • Educating section members.
  • Drafting amicus briefs and proposing legislation.
  • Encouraging ethical conduct.
  • Developing and improving standards of practice.
  • Encouraging and promoting pro bono opportunities.
  • Providing a forum through which family law practitioners may cooperate with, encourage and assist each other in the resolution of problems and practice issues.
  • Fostering communication between Los Angeles County Bar Association members and other groups. 

As a group, family law attorneys are so generous in sharing their time and expertise when asked to do so.  This includes presenting at our Continuing Legal Education seminars and pitching in on our various committees where we are trying to elevate the practice and to improve experiences of litigants going through our courts.  In this past year, family law attorneys have stepped up to continue to volunteer as Daily Settlement Officers when the budget cutbacks have brought about the closing of the ADR office; they have volunteered to serve on our Trial Readiness Clinics that have been established to assist self-represented litigants understand how to appear in court if their case is going to trial; they have volunteered to serve on our Veterans and Active Military Committee to help this special population with family law problems; and they are serving on our Diversity Awareness Liaison Committee to try to raise awareness of diversity issues in family law cases in our ever-increasingly diverse county.

I want to give a special and heartfelt  thanks to an exceptionally  supportive group of officers, Seth Kramer, chair-elect, Peter Walzer, vice-chair, Ron Brot, Secretary, and Judy Bogen, Treasurer. 

Also, I want to thank the judicial officers who have served as Judicial Liaison members of the Executive Committee, attending our long meetings, participating on various committees and in our continuing education programs.  Thanks especially to our Family Law Supervising Judge, the Honorable Scott M. Gordon, and to Commissioner John  Chemeleski, the Honorable. Mark A. Juhas, the Honorable Thomas Trent Lewis and the Honorable B. Scott  Silverman, who served as liaison members.

At the Dinner Dance in October, we honored our past chair, Roberta Bennett, with the well-deserved Spencer Brandeis award.  Seth Kramer and David Shebby put in a huge effort as chairs of the Dinner Dance committee to make this a successful event. 

Special thanks to Cari Pines, chair of our Mediation Committee, and to the Honorable Mark Juhas, who worked so diligently to assist in the Family Law Section taking over the administration of the Daily Settlement Officer program from the court side.  Other members of her committee, Heidi Tuffias, Dvorah Markman and Debra Frank are all working to help make the transition from the ADR Office to the Family Law Section, and to the Mediation Committee in particular.  Also, Tracy Katz, CPA, is taking over the reins of the accountants who will assist in the mediations on Wednesdays each week.  Other members of our Mediation Committee are Mary Lund, PhD, David Kuroda, LSCW, Joseph Spirito, David Yamamoto, and Paul White, CPA. 

While there are issues to be ironed out, it is so important that we are able to continue with this valuable program.  According to the ADR Office statistics, the Daily Settlement Officer program had the highest percentage  of settled cases of any of the programs it administered, and the resolving of these OSCs, motions, RFOs and  trials, provides more time for each court to deal with the many litigated cases.

On Saturday morning, September 21, 2013, the Mediation Committee  will be presenting a 3-hour mediation training at the Los Angeles Law Library for all daily settlement officers and those who want to become one.
 
I also want to thank Tigran Palyan who has taken over as chair of the Trial Readiness Clinics so that program can be ongoing, and his vice-chair, Merlyn Hernandez, who will be working to get the Spanish-speaking clinics going this fall.  Also, thanks to Roberta Bennett, who worked with me to prepare the curriculum for these clinics in conjunction with the Self-Help Clinic at the court.

Thanks to Adam King, we now have a group of family law attorneys who have gone through a training and are available to assist with the veterans and  members of active duty military who may have been deployed and need help with family law issues as a result.

Finally, many thanks to Abbas Hadjian, chair of our Diversity Committee, whose members are the tireless Judge Mark Juhas,  Ghitu Bhatia, Rose Marie Gallegos, Dvorah Markman, Randy Medina, Warren Shiell and David Yamamoto.  Abbas has worked diligently to create an incredible program scheduled for July 27, 2013.  “Piercing the Veil of Culture,” is going to be an intriguing program and will  increase our cultural competency in family law.  The program is being co-sponsored by the Los Angeles County Bar Association, the Iranian Lawyers Association, the Los Angeles County Law Library, plus about 10 other bar associations.

Not to slight other hard-working Ex Comm members who worked with such dedication to put on our CLE programs this year.  Thanks to Glen Schwartz, David Shebby, Stephanie Blum, Claudia Ribet, Paula Kane, Peter Walzer, and Laurel Brauer, each of whom chaired a program this year.  Heidi Tuffias is busy organizing the Child Custody Colloquium for October 26, 2013.

Of course, Raymond Goldstein deserves a special recognition for being an excellent editor of this E-News.  Raymond also chaired our Legislation/Amicus Committee this year and, for all his efforts, he has been elected as an officer for next year.

Joe  Spirito deserves special kudos for performing the difficult task of overseeing the Family Law Listserv and being our Membership and Outreach Chair, which included organizing the Listserv Party.  That event, was a great success, and so satisfying to be able to put faces to the names we see on the listserv.

Thanks to all the other Ex Comm members, for coming to the meetings, for voicing opinions, and for working on committees and appearing in CLE programs.   I appreciated all of your efforts.

In closing, I just want to say a few words about civility in the practice of family law and the case In re Marriage of Davenport (2011) 19 Cal.App.4th 1507. You will recall that in the Davenport case, a young and overzealous attorney ended up with his client being assessed a large amount in attorney’s fees under Family Code §271 for his lack of civility toward opposing counsel.   The court admonished:

“A reminder to counsel---all counsel, regardless of practice, regardless of age—that zealous advocacy does not equate with ‘attack dog’ or scorched earth’; nor does it mean lack of civility.  {skip citations] Zeal and vigor in the representation of clients are commendable.  So are civility, courtesy, and cooperation.  They are not mutually exclusive.”

In re Marriage of Davenport, supra, at 1537.  Another point that was made is that the law firm that the young attorney was in had encouraged him to behave in the manner that he had.

Some years ago, I read a book written by Steven Keeva, titled:  Transforming Practices:  Finding Joy and Satisfaction in the Legal Life, which I highly recommend.  In one part, Keeva writes about legal education in America and how it emphasizes the intellect, logic, reason, and the analytical over everything else.  He notes that in the history of legal education the attempt to teach law as a science, has ended in producing “…a system unexcelled in its ability to train the mind to produce airtight, unassailable legal arguments, and to also manage to marginalize most of human experience.”  (p. 7.) (emphasis added added.)

Of course, in Family Law, our cases are more about human experience than anything else.  While it can be very satisfying to make a brilliant legal argument, it may offer cold comfort to our clients, unless it is also combined with a sensitivity to their human needs.   In Family Law it is so important that we focus on our client’s needs, their best interests and the best way to achieve their goals.  When our clients come to us, they are suffering.  They have suffered the breakdown of their family, the breakdown of what should be their most important relationship in life.  They are likely to be financially devastated.  Although Buddhism teaches as its primary tenet that ”Life means Suffering,” that does not mean, just because that is the human condition, that we as attorneys have to intensify that suffering.  We are there to help our clients solve their problems, and that usually takes more than knowing the law and being analytical.  Another book I read recently is Choosing Civility:  The Twenty-five Rules of Considerate Conduct by P.M.Forni.  Forni reminds us that “When we lessen the burden of living for those around us we are doing well; when we add to the misery of the world we are not.” 

In our cases, what we should be doing is trying to lessen the burden of living for our clients, trying to mitigate their suffering.  If, instead, our behavior during the course of our client’s case only adds to the misery of it all, this is not helping to solve the client’s problems.  As the Davenport court pointed out, zealous advocacy does not require an attorney to be rude, inconsiderate, abrasive, or implacable.  It is possible to represent your clients effectively in a responsible and caring way.  We can respect the process and the role each attorney is given to play and choose to act and react in a civil manner.  In doing so, we can minimize the stress in our own lives and help to improve our own relationships so that we do not end up suffering as our clients.  Improving our human interactions improves the quality of our lives and those around us.  So, my parting word is to encourage you to appreciate the lessons of Davenport….practice civility in your life and in the practice of law.      


“. . . And Now for Something Completely Different.”
                                                                                    - Monty Python

Family Law Supervising Judge, Scott M. Gordon

This article will be a little different than the past few offerings.  Unfortunately, much of what there has been to talk about has dealt with the negative effects of the budget crisis.  Those pressures and challenges still exist and are very real.  However, there are several things that have occurred that will provide enhanced service to you and our litigants.  These new programs are also show the incredible resiliency and dedication of the Family Law Division Staff and the staff of Family Court Services led by Susan Thrall.

As you know, the reduction of staff that we have experienced over the past several years has forced the termination of Full Child Custody Evaluations by Family Court Services.  This has placed much greater pressure on the Solution Focused Evaluation (SFE) process (formerly known as “Fast Track” evaluations). It has also funneled cases into the SFE process that present issues too complex for the traditional SFE process.

In an effort to provide greater service, Family Court Services (FCS) is offering enhanced evaluation services in the form of Parenting Plan Assessments (PPA).  FCS now performs two types of assessments, the PPAI and PPSAII.

PPAI

In the PPAI the judicial officer will evaluate whether the case is appropriate for the limited evaluation similar to the Solution Focused Evaluation process. The case will be referred to Family Court Services for scheduling and specific instructions. On the day of the PPAI, the parties will bring the minor child(ren) to court as instructed. The evaluator will meet with the parties and interview the children and conduct limited collateral verification. At 1:30, the evaluator will provide a report in court including recommendations.

PPAII

The PPAII is a two-day process designed for cases with compelling issues.  This longer process gives the parties more opportunity to present information and gives the evaluator a greater opportunity to determine the issues and to work with the parties.  In the PPAII process, the recommendations will given and process completed on second day of assessment at 1:30 p.m. when the evaluator testifies in court.

The PPAII, while by no means supplants a full child custody evaluation, it should be employed in cases involving more than two of the following issues:

    • Move away
    • History of serious mental illness
    • Child or parent with physical/ developmental disability
    • High conflict cases
    • Three or more children over the age of 5
    • History of child abduction
    • Sexual molestation (Consider a FC §3118 evaluation)
    • Repeated allegations of child abuse
    • Domestic violence
    • Chronic substance abuse

The PPA II is structured as follows:

Day One:

Review Legal File
Interview Parent 1
Interview Parent 2
Interview children
Observe/ Interview Parent 1 and children
Observe/ Interview Parent 2 and children
Make collateral calls

Day Two:

Consult with necessary professionals
Make additional collateral calls; prepare testimony, type recommendations for distribution
11:00 a.m. Conference with attorneys and/ or parents
1:30 p.m.  Testify

The fees for these evaluations are:  PPA I - $975 and the PPA II - $1950.

It is hoped that these new assessments will provide greater flexibility and resources to litigants going through the challenging process of child custody litigation.

Young Parents --- Bright Futures

Some of the most challenging cases in the Family Law system are those involving young parents.  In many cases the parents litigating child custody disputes are still teenagers or are in their early twenties.  These cases are challenging to adjudicate and are in many instances driven by factors outside the issues presented in the case.  In order to provide another tool to help these young families, the Court has initiated the Young Parents-Bright Futures program.  This is a project of the Los Angeles Center for Law and Justice in partnership with the Los Angeles Superior Court.  The project is made possible through a grant from the Legal Services Trust Fund of the State Bar of California.

This program, designed for young parents – 24 years and younger consists of a free half-day information session.  There is no charge to any participating person.  The sessions are held on the 3rd Monday of each month from 8:30 a.m. until Noon.  The program is offered in Room 233 in the Stanley Mosk Courthouse.

During the program information will be provided regarding:

    • Parenting
    • Co-parenting
    • The Legal process
    • Job fairs
    • Other Resources

Shriver Family Law Project --- Parenting Education Course

The Shriver Family Law Project has just announced a new program for low-income parents with child custody cases in the Central District.  This parent education program consists of 8 hours in instruction in English or Spanish presented in two hour sessions.  There are separate classes for each parent.  These classes are designed to improve co-parenting and parent communication.  For more information parties can call (213) 625-1044.


I am pleased that in a time of diminished resources that we can find ways to offer more resources for litigants. It is hoped that these new programs provide assistance to you and your clients.

Observations of a Past Chair

Robert C. Brandt

As the Immediate Past Chair of the Los Angeles County Bar Association (LACBA) Family Law Section, I have had the honor and privilege to continue to attend Family Law Executive Committee Meetings during the 2012-2013 term and to participate in discussions and decisions that affect the practice of Family Law. I have also had the opportunity as the Immediate Past Chair to observe Lynette Robe Berg, who was the Chair of our Section for this term. Lynette has been a superb Chair, and is most deserving of the Outstanding Section Leader Award presented by LACBA. Lynette has been our Chair during a turbulent financial climate in which the Courts have had to deal with significant, devastating, and unfortunate budget cuts resulting in the loss of many jobs. The budgetary problems that the Court has been confronted with have been handled exceptionally well by our Supervising Family Law Judge, Scott M. Gordon and our Family Law Judiciary. I am proud to be part of the Family Law Bar, as it has done a great job in positively interacting with our Family Law Judiciary in order that access to justice remains for all Family Law litigants. The system has moved as smoothly as possible regardless of the difficult budget constraints we have been confronted with this year.

I found it particularly encouraging that the Family Law Section has continued to provide assistance to the courts with respect to the mediation program in Department 2. Even though budget cuts resulted in a loss of ADR, with the significant and strenuous efforts of Cari Pines, our Daily Settlement Officer Chair, and with the assistance of her Co-Chairpersons, the Family Law Bar has continued to provide volunteer mediation services on a daily basis and these services assist the Court in settling cases that would have incurred significant Court time and expense.

Family Law is complicated, strenuous, emotional and time consuming. Those of us who are employed in this field can be proud of LACBA’s Family Law Section for continuing to provide strong, vibrant and positive leadership and services to the Los Angeles Family Law Community. I have no doubt that our Section will continue to excel in its commitment to excellence in all aspects of Family Law.


In Memoriam - Stuart B. Walzer:  July 12, 1924 - May 8, 2013

Peter M. Walzer

Thermopylae:

Honor to those who in the life they lead
define and guard a Thermopylae.
Never betraying what is right,
consistent and just in all they do
but showing pity also, and compassion;
generous when they are rich, and when they are poor,
still generous in small ways,
still helping as much as they can;
always speaking the truth,
yet without hating those who lie.
And even more honor is due to them
when they foresee (as many do foresee)
that in the end Ephialtis will make his appearance,
that the Medes will break through after all.
   
                            - C.P. Cavafy
     
This poem memorializes the great battle where 7000 Greeks (including 300 Spartans) fought off a force of 70,000 Persians for 3 days until they were betrayed by Ephialtis who led the Persians (the Medes) down a goat path on the Greeks flank where the Greeks were ultimately decimated. It was a favorite poem of my Dad. My Mom wrote it for him by hand in calligraphy which was framed on the wall of his study.
       
No doubt this poem defined Stuart B. Walzer. He upheld righteousness and saw the practice of law and of life as one and the same thing. He loved to write and lecture to other lawyers about various topics in the law, often on a topic that was on the cutting edge of our practice. To say Stuart was well-read is an understatement. He had a quote from Shakespeare or the Bible for every occasion. He had a serious mien, but he appreciated the humor in life's twists and turns.
       
 He was an innovator. He brought the scholarship he learned at Harvard to family law. In 1971 he authored the book California Marital Termination Agreements. He showed lawyers how an understanding of the tax laws was integral to the drafting of family law agreements. In the years preceding the publication of that treatise, he was on the Governor's Commission which initiated no fault law to California on January 1, 1970.  This ushered in a practice that was focused on valuation issues, tax issues, and other business related issues. For years Stuart was the only family lawyer on the board of the Association of Business Trial Lawyers. He also was realistic about the business of the practice of the law. He was a savvy marketer and he used his ability to write and speak to promote his firm. He often said you must keep your name before other lawyers like a constant drumbeat. 
       
My Dad was more than a lawyer -- he was a professional and he saw the benefit of organization. He was active in the family law section of the Los Angeles County Bar Association and often lectured for the bar. He founded the LACBA’s Lawyer’s Literary Society and he held meetings at his home in Beverly Hills for years. He was on the council of the ABA Family Law section and later he became involved in the American Academy of Matrimonial Lawyers. He founded the Southern California Chapter of the AAML and was its president the first two years. He taught many lawyers who attended his course on family law at USC. He mentored many family lawyers and he was a member of one of the first family law study groups.
       
The law was not Stuart's only interest. He was a Master Gardener. His gardens in Beverly Hills and Carmel were remarkable. He was leading a book group -- up until this year. He was always an exercise buff. It must have started in the Army, but he continued his exercise practice at UCLA where he would drive down to Muscle Beach in Santa Monica to work out. For years he would run the track at Beverly Hills High School. I remembered running the track trying to keep up with him. We had just finished four miles and I stopped short of the clock which marked the end of a lap. He reminded me that we must cross to finish line for it to "count". My Mom and Dad were married over 60 years and they were a team.  Perhaps my mother's Alzheimer's disease was my Dad's Thermopylae. This was a battle that could not be won. One of life's seeming betrayals. Yet there is victory in a life lived for love, honor and loyalty.  Can you ask for more?


Alimony Deduction Denied by Tax Court

Pete Muffoletto, CPA

In a recent U.S. Tax Court opinion the Court found that temporary support payments made by an individual to his spouse did not qualify as alimony. The issue revolved around the lack of a signed agreement. The case involved divorcing spouses where payments had made under an oral temporary support agreement that was negotiated by their respective attorneys but never finalized. The Tax Court concluded that the payments did not qualify as alimony due to the fact that they were not made under a divorce or separation instrument.

The Internal Revenue Code (IRC) states that a taxpayer may claim a deduction for alimony or separate maintenance payments made during the tax year under IRC 215 assuming that the payments meet the following requirements:

  • The payment must be made under a divorce or separation instrument;
  • The instrument must not designate the payment as not includable in the recipient spouse's gross income under Code Sec. 71 and not deductible by the payor spouse under Code Sec. 215;
  • Legally separated spouses under a decree of divorce or separate maintenance must not be members of the same household when the payments are made; and
  • The payor's obligation to make the payment must end at the death of the payee spouse. (Code Sec. 71(b)(1))

 

In the specific case separation occurred in May of 2007. On July 20, 2007, the spouse filed a motion for temporary support in divorce court. Subsequently, the parties attorneys exchanged correspondence regarding the terms of a temporary support agreement.

While the parties were negotiating terms of a temporary support order, the husband began making monthly transfers of $5,000 to a joint checking account. Subsequently two proposed temporary support orders were exchanged between the parties but never finalized. Neither spouse signed either of the two proposed temporary support orders. During this period the husband continued to make the monthly $5,000 transfers into the joint account through April 2008.

On May 23, 2008, the divorce court entered a decree of dissolution of marriage (divorce decree) dissolving the marriage. The divorce decree awarded alimony to Ms. Faylor of $2,500 a month for 6 months and then $1,500 a month for 66 months thereafter.

The husband thereafter filed his 2008 tax return wherein he claimed a deduction of $36,500 for alimony paid. Of that amount, $16,500 represented payments James made to Ms. Faylor pursuant to the divorce decree. The remaining $20,000, which IRS disallowed, represented the transfers to the joint account made before the divorce decree.

The IRS successfully argued that the $20,000 did not qualify as alimony because it was not paid under a divorce or separation instrument. The taxpayer conceded that the deposits that were made to the joint account were not paid under a decree but his argument was that the letters between the attorneys constituted a "meeting of the minds," forming the basis of a written separation agreement between him and his wife under Code Sec. 71(b)(2)(B).

The Tax Court found that the letters between the attorneys did not establish the existence of a written separation agreement. The letters showed there was no meeting of the minds between the spouses. Both the spouse and her attorney both testified at trial that the spouses did not come to an agreement. There was further testimony that the spouse did not sign either of the proposed temporary support orders because she did not agree to all of the terms. Her attorney also testified that he had discussed with the husband's attorney the amount and terms of the temporary support, but a complete agreement was not reached. The Tax Court thus found that the $20,000 was not paid under a divorce or separation instrument, as required by Code Sec. 71(b)(2)(B). Accordingly, it held that the taxpayer  was not allowed the deduction as to the $20,000 as alimony.

As in all cases the IRS sought to impose an accuracy-related penalty but the Court dismissed that portion of the case finding that the taxpayer had reasonable cause for the position taken on his return and acted in good faith.

The Court said that the taxpayer had mistakenly believed that he was entitled to deduct the $20,000 that was transferred before the divorce decree as alimony. Although the Court disagreed as to the underlying issue, the court found it was reasonable for the taxpayer to believe the funds transferred while negotiating a temporary support order was alimony.

The question that was not brought up in this matter was whether there was malpractice on the part of the attorney representing the husband in this matter wherein the advice of the attorney should have been to advice the client as to the questionable issue of the prospective tax deduction when no finalized agreement was in place prior to making payments to the spouse. We always suggest that in such matters tax counsel be sought.


May 11, 2013 Listserv Party
Joseph Spirito

The Family Law Section List Serve Party held on Saturday, May 11, 2013 was a success. Turnout was great, with over sixty paid guests in attendance.  The party was held at Rosa Mexicano at LA Live which was centrally located for our List Serve participants. People all over the county attended and we even had subscribers fly in from Northern Ca.

A few selected comments are below:

“Thoroughly enjoyed the party. I loved meeting all the people and associated a name with the attorneys and friends on the list serve.” - Martha Romero

“Great party! Michelle and I really enjoyed ourselves” - Connolly Oyler

“That was a fun party on Saturday. Great to associate some faces with names on the listserve. The group is just as energetic, open and talkative live as it is online. I consider it a privilege to belong to this group and am looking forward to the next mixer. Congrats and thanks to those that organized this one.” - George Gamez, Ph.D. J.D.

The following photographs capture the festive mood of the evening:

 


Announcements

Inns of Court - Join Now!

The Southern California Family Law American Inn of Court is about to begin our seventh year of programs. We are a chapter of the American Inns of Court, a fast growing national legal organization consisting of more than 27,000 members nationwide, and 350 chartered Inns. Goals of the American Inns of Court are to increase legal skills, collegiality, ethics, and professionalism among the bench and bar. American Inn of Court membership consists of judicial officers and lawyers of varying experience, and in some cases, law students and law professors. Members are divided into pupilage teams, who meet informally throughout the year. Each pupilage team presents one continuing legal education program annually. If you would like more information about the American Inns of Court, visit their website: http://home.innsofcourt.org/.

The Inn’s meetings are scheduled on the first Tuesday of each month, commencing on October 1, 2013, and running through June 2014 (no meetings in January and April). The reception starts at 6:00 p.m., followed by dinner and a program at 6:30 p.m. The program ends at 7:30 p.m. The remainder of the evening until 8:30 p.m. is spent interacting with attendees. Our first meeting on October 1, 2013 will be at Season’s 52 in the Century City mall, the former home of Houston’s Restaurant.

Membership dues for the Inn of Court are $595, which includes the dinners and hors d’oeuvres during the reception. Newer attorneys, up to their fifth year of practice, may join at a discounted rate of $450. Family law judicial officers may join at no charge.

Please submit your application promptly. Don’t miss out on this opportunity to educate, to learn, and to socialize with your colleagues.

The application and a list of the 2013-2014 program dates can be downloaded from:
http://www.innsofcourt.org/Inns/socalfamilylaw/.

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Harriett Buhai Center for Family Law
Receives Award for Innovation

The Harriett Buhai Center for Family Law was honored at the recent Association of Family and Conciliation Courts (“AFCC”) international conference  held here in Los Angeles.  The Harriett Buhai Center received the Irwin Cantor Innovative Program award from AFCC.    This was the 50th anniversary of AFCC, which is an interdisciplinary association of family law attorneys, family law judicial officers, and mental health professionals who provide services in family law-related cases from all over the United States and the world.  The Harriett Buhai Center, which is a non-profit providing services in family law for the lowest income  people living in Los Angeles County,  has pioneered many creative and cutting-edge procedures and programs over the past 30 years, and the Irwin Cantor award acknowledges that contribution.  These innovations include teaching self-help assistance to family law litigants, domestic violence shelter partnership, legal services to low-income  community college students and formerly incarcerated mothers.  The Center is one of the only non-profit family law organizations in the United States that offers regular assistance to parents released from jail or prison to help them reunite and maintain relationships with their children.  Center  Executive  Director Betty Norwind received the award on behalf of the Buhai Center.  The Los Angeles County Bar Association was a co-sponsor of the AFCC Conference, which was held at the JW Marriott in the L.A. Live Center downtown.

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Cultural Competency in Family Practice

Registration for Cultural Competency in Family Practice is available, starting today: http://www.ialawyers.org/piercing-the-veil-of-culture.php. The seminar is held on Saturday, July 27, 2013, at the University of West Los Angeles (UWLA), Inglewood. A Faculty of more than 20 active family law judicial officers, mediators, psychologists, and attorneys with diverse cultural background, knowledge, or experience in five (5) Lecturing Panels. They address "Creation of the marriage", "Relationship during the marriage", "Divorce", and "Consequence of divorce" from a global perspective. They also discuss treatment of "Cultural issues in California Family Courts". At the cost of $100.00 or less (including lunch), you will receive eight (8) hours of MCLE, consisting of one (1) hour Elimination of Bias and seven (7) hours of General or Specialization Credits, plus 2 hours of free workshop on international family law research in the Los Angeles Law Library. Space is limited. Send questions to abbashadjian@sbcglobal.net. Here is the link again: http://www.ialawyers.org/piercing-the-veil-of-culture.php.

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Hot Listserv Threads

If you are not already participating in our ListServe and enjoying this great benefit, please opt-in. Novices to seasoned attorneys are creating new topics and answering questions daily. Below you will find a number of interesting ListServe threads pertaining to family law. Each link below will bring you directly to the relevant thread. If you are not already logged in to LACBA, the website will prompt you to enter your email address and password. After doing so you will be brought directly to the linked thread: 

New published case: IRMO Ficke Property Division Issue
Taxes for accord/satisfaction spousal support arrears 
Mandated Reporter 
Mentor Question: Motion to Dismiss
Attaching IEP:
OT - Ethics question
CP or SP
Therapist - child privilege?

A Summary of Selected Pending Family Law California Legislation

Active Bills:

AB 157 – Campos. 
 
Existing law authorizes a court to issue an ex parte order enjoining a party from engaging in specified acts against another party, including threatening or harassing that party, and, in the discretion of the court, against other named family or household members. A violation of this court order constitutes contempt of court, which is punishable as a misdemeanor.

This bill would, commencing July 1, 2014, additionally authorize a court to issue an ex parte order enjoining a party from credibly impersonating or falsely personating another party.

AB 161 – Campos.

Existing law requires a court in a proceeding for dissolution of marriage or legal separation of the parties to issue a temporary restraining order enjoining both parties from cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage held for the benefit of the parties and their child or children, for whom support may be ordered. Existing law also authorizes a court in a domestic violence proceeding to issue ex parte protective orders, as specified.

This bill would specifically authorize, on and after July 1, 2014, a court in a domestic violence proceeding to issue an ex parte order restraining any party from cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage held for the benefit of the parties, or their child or children, if any, for whom support may be ordered, or both.

AB 176 – Campos.

Existing law requires, if there is more than one civil protective or restraining order regarding the same parties, a peace officer to enforce the order issued last. If both criminal and civil protective or restraining orders have been issued regarding the same parties, existing law generally requires an officer to enforce the criminal order issued last.

This bill would instead, if more than one order has been issued and one of the orders is a no-contact order, as described, require an officer to enforce the no-contact order.

AB 499 – Ting.

Existing law provides that a person who has suffered harassment, as defined, may seek a temporary restraining order and an injunction prohibiting harassment. If issued, the injunction shall be in effect for a period of up to 3 years and may be renewed for another period of up to 3 years. If the form does not establish an expiration date for the injunction, existing law establishes a default duration of 3 years.

This bill would provide that the injunction shall remain in effect, subject to termination or modification by further order of the court, for up to 5 years and would extend the order renewal period for up to additional 5 years.

AB 522 – Bloom.

Existing law authorizes a court to dismiss an action for delay in prosecution if, among other conditions, an action is not brought to trial within a specified period of time. Existing law prohibits dismissal of an action for dissolution of marriage or for legal separation of parties under specified conditions, including if a valid order for child or spousal support exists or, in an action for dissolution of marriage, a separate trial on the issue of the status of marriage has been conducted as provided by law.

This bill would expand the types of actions to which the exception to dismissal of an action for delay in prosecution would apply and would include an action for the dissolution of a domestic partnership, an action based on void or voidable marriage, and an action relating to a child custody or visitation order. The bill would prohibit those actions from being dismissed under the specified conditions that would also include if an order regarding child custody or visitation has been issued, as specified, or if a valid personal conduct restraining order exists and if an issue in the case has been bifurcated, as specified.

AB 545 – Mitchell.

Existing law sets forth various placement options for children who have been adjudged dependent children of the juvenile court and removed from their homes on the basis of neglect or abuse, as specified, which include placement within the approved home of a nonrelative extended family member. Existing law defines “nonrelative extended family member” as an adult caregiver who has an established familial or mentoring relationship with the child.

This bill would expand the definition of a nonrelative extended family member to include an adult caregiver who has an established familial relationship with a relative of the child, as defined.

AB 681 – Melendez.

Existing law provides that when a spouse is convicted of a specified violent sexual felony against the other spouse, an award of spousal support to the convicted spouse from the injured spouse is prohibited, and the injured spouse is entitled to 100% of the community property interest in the retirement and pension benefits of the injured spouse. Existing law requires a family court to consider the criminal conviction of an abusive spouse in making a reduction or elimination of a spousal support award in accordance with these provisions.

This bill would prohibit the award of spousal support to a spouse convicted of a violent sexual felony against a child that was committed on or after January 1, 2014, in any proceeding for dissolution of marriage filed on or after January 1, 2014. The bill would provide that the conviction of this felony constitutes a change in circumstances for purposes of a spousal support modification request. The bill would require a family court to consider the criminal conviction of an abusive spouse in making a reduction or elimination of a spousal support award in accordance with these provisions.

AB 848 – Patterson.

Existing law prescribes the procedures for the relinquishment of a child to the State Department of Social Services or a licensed adoption agency for adoption, and requires the relinquishment to be signed and acknowledged before specified persons. Existing law specifies certain time periods during which a birth parent may revoke a relinquishment for adoption, but also provides that a birth parent may elect to sign a waiver of the right to revoke relinquishment in the presence of specified persons. Existing law requires that if the waiver is signed in the presence of an authorized representative of a private licensed adoption agency, the relinquishment becomes final and irrevocable at the close of the next business day.

This bill would additionally provide that if the waiver is signed in the presence of an authorized representative of a private licensed adoption agency, the relinquishment becomes final and irrevocable at either the close of the next business day or at the close of the next business day after expiration of any holding period specified in writing, whichever is later. The bill would also provide that the waiver of the right to revoke relinquishment is invalid if the relinquishment is determined to be invalid, is revoked during any holding period specified in writing, or is rescinded, as specified.

Under existing law, at the discretion of the department, county adoption agency, or a licensed adoption agency, an abbreviated assessment or home study of the prospective adoptive parent may be performed, as provided, if the prospective adoptive parent of a child is a foster parent with whom the child has lived for a minimum of 6 months or a relative caregiver who has had an ongoing and significant relationship with the child.

This bill would permit an abbreviated assessment or home study for a licensed or certified foster parent with whom the child has lived for a minimum of 6 months, an approved relative caregiver or nonrelated extended family member with whom the dependent child has had an ongoing and significant relationship, a court-appointed relative guardian of the child, as specified, or a prospective adoptive parent who has completed an agency-supervised adoption within the last 2 years.

AB 1403 – Judiciary Committee Bill.

(1) The Uniform Parentage Act defines the parent and child relationship as the legal relationship existing between a child and the child’s parents, including the mother and child relationship and the father and child relationship, and governs proceedings to establish that relationship.

The bill would define “natural parent” as a nonadoptive parent, as specified, whether biologically related to the child or not. The bill would also make certain provisions gender neutral and refer instead to a “presumed parent” or “parent.”

(2) Existing law specifies the number of judges of the superior court for each county, and allocates additional judgeships to the various counties in accordance with uniform standards for factually determining additional need in each county, as approved by the Judicial Council, and other specified criteria. Existing law provides for the conversion of 146 subordinate judicial officer positions in eligible superior courts upon the occurrence of specified conditions, including that the proposed action is ratified by the Legislature, except that no more than 16 positions may be converted to judgeships in any fiscal year. Notwithstanding this provision, up to 10 additional subordinate judicial officer positions may be converted to judgeships in any fiscal year, if the conversions will result in a judge being assigned to a family law or juvenile law assignment previously presided over by a subordinate judicial officer and the proposed action is ratified by the Legislature. Existing law ratifies the authority of the Judicial Council to convert 10 of those subordinate judicial officer positions to judgeships in the 2011–12 fiscal year.

This bill would ratify the authority of the Judicial Council to convert 10 subordinate judicial officer positions to judgeships in the 2013–14 fiscal year where the conversion will result in a judge being assigned to a family law or juvenile law assignment previously presided over by a subordinate judicial officer.

SB 115 – Hill.

Existing law, the Uniform Parentage Act, sets forth the circumstances under which a man may be presumed to be the natural father of a child. Under existing law, those circumstances include if he receives the child into his home and openly holds out the child as his natural child and if the child is in utero after the father’s death and specified conditions applicable with respect to determining rights to the property to be distributed upon the death of the decedent are satisfied. Existing law authorizes any interested party to bring an action at any time for the purpose of determining the existence or nonexistence of the father and child relationship that is presumed under those circumstances. The Uniform Parentage Act also provides that the donor of semen provided to a licensed physician and surgeon or to a licensed sperm bank for use in artificial insemination or in vitro fertilization of a woman other than the donor’s wife is treated in law as if he were not the natural father of a child thereby conceived, unless otherwise agreed to in a writing signed by the donor and the woman prior to the conception of the child.

This bill would instead provide that notwithstanding the treatment in law of the sperm donor under those circumstances, any interested party may bring an action at any time for the purpose of determining parentage of a man presumed to be the father because he receives the child into his home and openly holds out the child as his natural child.

SB 274 – Leno.

(1) Under existing law, a man is conclusively presumed to be the father of a child if he was married to and cohabiting with the child’s mother, except as specified. Existing law also provides that if a man signs a voluntary declaration of paternity, it has the force and effect of a judgment of paternity, subject to certain exceptions. Existing law further provides that a man is rebuttably presumed to be the father if he was married to, or attempted to marry, the mother before or after the birth of the child, or he receives the child as his own and openly holds the child out as his own. Under existing law, the latter presumptions are rebutted by a judgment establishing paternity by another man.

This bill would authorize a court to find that more than 2 persons with a claim to parentage, as specified, are parents if the court finds that recognizing only 2 parents would be detrimental to the child. The bill would direct the court, in making this determination, to consider all relevant factors, including, but not limited to, the harm of removing the child from a stable placement with a parent who has fulfilled the child’s physical needs and the child’s psychological needs for care and affection, and who has assumed that role for a substantial period of time.

(2) The Uniform Parentage Act defines the parent and child relationship as the legal relationship existing between a child and the child’s parents, including the mother and child relationship and the father and child relationship, and governs proceedings to establish that relationship.

This bill would provide that a child may have a parent and child relationship with more than 2 parents. The bill would require any reference to 2 parents to be interpreted to apply to all of a child’s parents where a child is found to have more than 2 parents, as specified.

(3) Existing law requires a family court to determine the best interest of the child for purposes of deciding child custody in proceedings for dissolution of marriage, nullity of marriage, legal separation of the parties, petitions for exclusive custody of a child, and proceedings under the Domestic Violence Prevention Act. In making that determination, existing law requires the court to consider specified factors, including the health, safety, and welfare of the child. Existing law establishes an order of preference for allocating child custody and directs the court to choose a parenting plan that is in the child’s best interest.

This bill would, in the case of a child with more than 2 parents, require the court to allocate custody and visitation among the parents based on the best interest of the child, as specified.

(4) Under existing law, the parents of a minor child are responsible for supporting the child. Existing law establishes the statewide uniform guideline for calculating court-ordered child support, which is rebuttably presumed to be the correct amount of child support. Existing law provides that the presumption may be rebutted by admissible evidence showing that application of the uniform guideline would be unjust or inappropriate because of one or more factors found to be applicable and the court provides certain information in writing, as specified.

This bill would direct the court to apply the statewide uniform guideline in a case where a child has more than 2 parents by dividing the child support obligations among the parents based on the income of each of the parents and the amount of time spent with the child by each parent. The bill would require the court to divide child support obligations among the parents in a just and appropriate manner, as specified, if the court finds that applying the statewide uniform guideline to a child with more than 2 parents would be unjust and inappropriate, as specified.

 (5) Under existing law, the birth parents of an adopted child are, from the time of the adoption, relieved of all parental duties towards, and all responsibility for, the adopted child, and have no right over the child.

This bill would provide that the termination of the parental duties and responsibility of the parent or parents may be waived by agreement of the parent or parents and the prospective adoptive parent.

SB 343 – Yee.

Existing law establishes the jurisdiction of the juvenile court, which is permitted to adjudge certain children to be dependents of the court under certain circumstances, and prescribes various hearings and other procedures for these purposes. Existing law prohibits the court from terminating dependency jurisdiction over a nonminor who has reached 18 years of age until a hearing is conducted and the county welfaredepartment has submitted a report verifying that specified information, documents, and services have been provided to the child.

This bill would revise and recast these provisions to, among other things, require the county welfare department to submit reports at the first regularly scheduled hearing after the child has attained 16 years of age and at the hearing immediately prior to the child attaining 18 years of age, verifying that the county has provided certain of the above-described information, documents, and services to the child.

SB 528 – Yee.

Under existing law, minors are authorized to consent to medical and other treatment under certain circumstances, including the diagnosis and treatment of sexual assault, medical care relating to the prevention or treatment of pregnancy, treatment of infectious, contagious, and communicable diseases, mental health treatment, and treatment for alcohol and drug abuse. Under existing law, a child may come within the jurisdiction of the juvenile court and become a dependent child of the court under certain circumstances, including in cases of abuse and neglect. Under existing law, when a minor has been, or has a petition filed with the court to be, adjudged a dependent child of the court, the court may authorize, or order that a social worker may authorize, medical and other care for the minor, as prescribed. Under existing law, a social worker may, without court order, authorize medical and other care for a minor in emergency situations, as specified.

This bill would specify that nothing in those provisions shall be construed to limit the rights of dependent children to consent to specified types of medical and other care, including the diagnosis and treatment of sexual assault, medical care relating to the prevention or treatment of pregnancy, treatment of infectious, contagious, and communicable diseases, mental health treatment, and treatment for alcohol and drug abuse. This bill would authorize a dependent child’s social worker, if the child is 12 years of age or older, to inform the child of his or her right as a minor to consent to and receive those health services. This bill would authorize social workers to provide dependent children with age-appropriate, medically accurate information about sexual development, reproductive health, and prevention of unplanned pregnancies and sexually transmitted infections on an ongoing basis.

Existing law declares the intent of the Legislature to maintain the continuity of the family unit and to support and preserve families headed by minor parents and nonminor dependent parents, as defined, and provides that, to the greatest extent possible, minor parents and their children living in foster care shall be provided with access to services that target supporting, maintaining, and developing the parent-child bond and the dependent parent’s ability to provide a permanent and safe home for the child. Under existing law, minor parents are required to be given the ability to attend school, complete homework, and participate in age and developmentally appropriate activities separate from parenting.

This bill would declare the intent of the Legislature to ensure that complete and accurate data on pregnant and parenting minor and nonminor dependents and their children is collected, as specified, and would authorize child welfare agencies to provide minor parents and nonminor dependent parents with access to social workers or resource specialists who have received specified training. The bill would encourage child welfare agencies to update the case plans for pregnant and parenting dependents within 60 calendar days of the date the agency is informed of a pregnancy, and would authorize those agencies to hold a specialized conference, as prescribed, to assist the pregnant or parenting foster youth and nonminor dependents with planning for healthy parenting, among other things. This bill would authorize child welfare agencies, local educational agencies, and child care resource and referral agencies to make reasonable and coordinated efforts to ensure that minor parents and nonminor dependent parents who have not completed high school have access to school programs that provide onsite or coordinated child care, and that minor parents are given priority for subsidized child care.

Existing law provides that it is the policy of the state that foster children have specified rights.

This bill would provide that foster children also have the right, at 12 years of age or older, to receive information regarding specified health care services.

Existing law, the Child Care and Development Services Act, administered by the State Department of Education, requires the Superintendent of Public Instruction to administer child care and development programs that offer a full range of services for eligible children from infancy to 13 years of age. Existing law requires the Superintendent to adopt rules and regulations on eligibility, enrollment, and priority of services needed to implement the Child Care and Development Services Act, and requires families to meet at least one of the specified requirements in order to be eligible for federal and state subsidized child development services.

This bill would provide that a family may be eligible for services if one or both parents are foster youth or nonminor dependents under 21 years of age, or if the family needs child care services because the parents are foster youth or nonminor dependents.

Under existing law, priority for federal and state subsidized child development services is given first to children who are or who are at risk of neglect or abuse, and second priority is given to eligible families who are income eligible, as specified. Existing law provides that if 2 or more families are in the same priority in relation to income, the family that has a child with exceptional needs shall be admitted first.

This bill would provide that a family in which one or both parents are foster youth or nonminor dependents under 21 years of age shall also be given second priority enrollment. The bill would prohibit this priority enrollment from being used to displace children who are currently receiving care.


Two Year Bills

AB 196 – Mansoor.

Under existing law, it is the policy of the state that all children in foster care have specified rights, including the right to live in a safe, healthy, and comfortable home where they are treated with respect, the right to be free from physical, sexual, emotional, or other abuse, or corporal punishment, and the right to receive adequate and healthy food, adequate clothing, and medical, dental, vision, and mental health services.

This bill would require the State Department of Social Services, in consultation with the County Welfare Directors Association, foster parents, caregivers, and current and former foster youth, to develop and implement a foster parent evaluation process. The bill would require that evaluation process to include a process to allow foster youth over 10 years of age and nonminor dependents to provide feedback on the quality of care received in licensed or certified foster homes and group homes at least every 6 months and upon any exit from those homes. The bill would also require the evaluation process to include the development of an evaluation tool in partnership with current and former foster youth and caregivers that allows youth to provide feedback on the quality of care received, as specified, including feedback on the caregivers’ honoring of the rights of foster youth. The bill would require the department to implement the foster parent evaluation process and promulgate all necessary regulations pursuant to this provision on or before January 1, 2015.

AB 414 – Fox.

Existing law provides that a grandparent may petition the court for visitation rights, and a relocating party may petition the court for visitation rights on behalf of a grandparent when the party is relocating because of his her military duty. The court may grant visitation if the court finds that the grandparent and grandchild have a preexisting relationship that has created such a bond that granting the grandparent visitation is in the best interests of the child, the court balances the interest of the child in having visitation with the grandparent against the parent’s right to exercise his or her parental authority, and, in the case of a party relocating because of his or her military duty, the court finds that visitation will facilitate the child’s contact with the relocating party, subject to specified exceptions.

This bill would delete the requirement that a court find that there was a preexisting relationship between the grandparent and the grandchild before granting the grandparent visitation rights.

AB 958 – Jones.

Existing law permits a court to appoint a child custody evaluator, who, except as specified, must be licensed as a physician, as a psychologist, as a marriage and family therapist, or as a clinical social worker, to conduct a child custody evaluation and file a written confidential report on his or her evaluation in any contested child custody or visitation rights proceeding. Existing law places limitations on the disclosure of the evaluator’s written confidential report, specifying in what circumstances the written confidential report may be disclosed.

This bill would expand the circumstances in which the written confidential report may be disclosed by requiring a court to disclose the report to the licensing board governing the child custody evaluator upon receiving a written request from the board, and by allowing a person who is permitted to possess the written confidential report to provide a copy of the report to the child custody evaluator’s licensing board in, order to assist the board in investigating allegations that the child custody evaluator engaged in unprofessional conduct. This bill would also specify in what circumstances the board may utilize the report, the procedures the board must follow when utilizing the report, and to whom the board may disclose the report.

SB 545 – Anderson.

(1)Existing law establishes the procedure for a person to change his or her name. When a proceeding for a change of name is commenced by the filing of a petition, existing law requires the court to issue an order reciting the filing of the petition, the name of the person by whom it is filed, and the name proposed, except as specified. In the case of a petition filed by a parent for the name change of a person under 18 years of age, existing law requires a minor’s nonconsenting parent to be served with notice of the time and place of the hearing, as specified.

This bill would authorize a court to waive the requirements for publication and notice to a nonconsenting parent if necessary to protect the best interests of the minor upon a showing by the petitioner that the minor and petitioner are participants in a specified address confidentiality program, that the petitioner has sole custody of the minor, that the child is protected by an order pursuant to the Domestic Violence Prevention Act that prevents the nonpetitioning parent from having contact with the minor for at least 5 years, and that the nonpetitioning parent is not subject to an order to pay child support for the minor.

(2) Existing law provides that if a petition for a change of name alleges a specified reason or circumstance and the petitioner is a participant in a specified address confidentiality program, the action for a change of name is exempt from the publication requirement.

This bill would provide that in order for the action for a change of name to be exempt from the publication requirement, the petitioner would also be required to establish that the name he or she is seeking to acquire is on file with the Secretary of State.

SB 597 – Lara.

Existing law requires that, when a witness is incapable of understanding the English language or is incapable of expressing himself or herself in the English language so as to be understood directly by counsel, court, and jury, an interpreter be sworn to interpret for him or her.

This bill would require the Judicial Council, by June 1, 2014, to establish a working group to review, identify, and develop best practices to provide interpreters in civil actions and proceedings, as specified. The bill would require the Judicial Council to select up to 5 courts to participate in a pilot project, to commence on July 1, 2014, to provide interpreters in civil proceedings. The bill would provide that the initial pilot courts participate until June 30, 2016, and would require the Judicial Council to consider whether a pilot court should continue participating in the project and whether to select another court or additional courts. The bill would require the Judicial Council, by January 1, 2019, to report to the Legislature its findings and recommendations based on the experiences of the model pilot program. The bill would repeal these provisions on January 1, 2020


Recent Case Summaries


Family Law

Posted: Tuesday, June 25, 2013
Indian Child Welfare Act’s restrictions on termination of parental rights as set forth in 25 U. S. C. Sec. 1912(d) and (f) do not apply where the parent never had physical or legal custody of the child. Placement of Indian child with non-Indian family did not violate Sec. 1915(a)--which gives preferences for the adoption of Indian children to members of the child’s extended family, other members of the Indian child’s tribe, and other Indian families--where Indian father’s parental rights were terminated, and no one in any of the preferred categories was actively seeking to adopt child.
     Adoptive Couple v. Baby Girl
     filed June 25, 2013
     Cite as 12-399_8mj8
     Full text click here
 
Family Law
Posted: Monday, June 24, 2013
Where married employee--whose retirement benefits were part community property and part his own separate property--exercised his right to purchase additional retirement credit based on premarital military service, paying for it partially with community property, the additional credit--except for the community’s contribution to the cost of obtaining the credit--was his separate property.
     In re Marriage of Green
     filed June 24, 2013
     Cite as S203561
     Full text click here
 
Family Law
Posted: Monday, June 24, 2013
Mother’s appeal from juvenile court’s dispositional order granting custody of minor to his biological father, who never achieved presumed father status, was not rendered moot by the court’s later order removing minor from his placement with biological father. Order granting custody to a mere biological father, who was not entitled to presumed father status, was error. Reversal and remand were required where visitation order failed to adequately specify the frequency and duration of mother’s visits.
     In re E.T.
     filed May 30, 2013, publication ordered June 21, 2013, Second District, Div. Eight
     Cite as B243407
     Full text click here
 
Family Law
Posted: Monday, June 24, 2013
Appointment of guardian ad litem for parent in dependency proceeding was supported by substantial evidence where evaluator reported that parent was delusional, and her responses to court’s questions indicated she was still delusional and did not appreciate her own mental health problems that had led to the commencement of the proceeding. Juvenile court was not required to hold a Marsden-type hearing on mother’s request for appointment of substitute counsel in dependency proceeding where the court had a good idea of the reasons for mother's dissatisfaction with counsel, and those reasons did not amount to a claim of ineffectiveness or conflict of interest. Even if the lack of such a hearing was error, the error was not of constitutional dimension and was harmless because it was unlikely to have affected the outcome of the proceedings.
     In re M.P.
     filed June 21, 2013, Sixth District
     Cite as H038640
     Full text click here
 
Family Law
Posted: Friday, June 21, 2013
Welfare & Institutions Code Sec. 361.2, which provides that a noncustodial parent is entitled to placement consideration when the child is removed from parental custody, does not apply where the noncustodial parent is "offending" in the sense of allegations of unfitness being sustained under Sec. 300(b).
     In re John M.
     filed May 23, 2013, publication ordered June 21, 2013, Second District, Div. One
     Cite as B243107
     Full text click here
 
Family Law
Posted: Friday, June 14, 2013
Dependency petition that included an allegation that parents "periodically" exposed child to violent confrontations in which parents engaged was sufficient to allege that child was at substantial risk of serious physical harm as a result of the parents' failure or inability to adequately supervise or protect her. Evidence of repeated violence between parents was sufficient for finding of dependency jurisdiction, even if child was not present during all of the incidents. Removal of child from father’s custody was supported by evidence that child was frightened when parents fought, and that father’s participation in domestic violence prevention programs had failed to address his anger issues, as he continued to blame mother and to claim that he did not know how she sustained injuries.
     In re T.V.
     filed May 29, 2013, publication ordered June 14, 2013, Fourth District, Div. One
     Cite as D063023
     Full text click here
 
Family Law
Posted: Wednesday, June 12, 2013
Trial court in calculating child support abused its discretion by imputing income to the custodial parent-—who was drawing negligible income from a start-up business--without an express finding supported by substantial evidence that the imputation would benefit the children. Order that wife, who was also the custodial parent of the couple’s children, pay spousal support was an abuse of discretion. Independent of any imputation based on wife’s earning capacity, husband was self-supporting and didn’t need the support. In calculating community interest in husband’s separate property, it was not an abuse of discretion for trial court to accept assumption that community contribution was confined strictly to the amount used to pay off the mortgage, rather than assume that all mortgage payments on the property made after marriage were also community. Husband was not required to provide specific tracing documentation where mortgage payments were not made from a commingled account. Trial court’s ruling that wife’s severance pay was community property, rather than compensation for a promise not to compete with her former employer in the future, was supported by substantial evidence from which trial court could have reasonably concluded. Given the breadth of wife’s experience, the value of the non-compete clause was de minimis in relation to the rest of the agreement, and/or that wife may have been terminated for a reason in violation of civil rights statutes. Most of the value of the severance package was in settlement of valuable anti-discrimination claims possessed by wife that arose during the marriage.
     Marriage of Ficke
     filed June 12, 2013, Fourth District, Div. Three
     Cite as G046263
     Full text click here
 
Family Law
Posted: Friday, June 7, 2013
To preserve claims related to the failure to follow the tribal customary adoption procedures set forth in Welfare and Institutions Code Sec. 366.24, a parent must object on those grounds in the juvenile court. Any error in failing to follow Sec. 366.24 was harmless where minor’s Native American heritage derived solely through mother, who voluntarily gave up her rights. The tribe supported the plan of adoption. There was no evidence that maintaining the non-Indian father’s parental relationship with the minor would protect the minor’s interest in maintaining his tribal connection.
     In re G.C.
     filed June 7, 2013, Third District
     Cite as C070086
     Full text click here
 
Family Law
Posted: Monday, June 3, 2013
Parents who absconded with minor and concealed her from the courts for over a year, were not disentitled to pursue appeal from order terminating their rights. The misconduct ended while the case was still in the trial court. Parents had submitted themselves and the minor to the juvenile court’s jurisdiction since then, and the minor was no longer in their custody. Order terminating parental rights following hearing, that father did not attend, was final and effective. Referee erred in setting it aside-—after discovering that father had called the court and left message saying he would be late-—without following procedures for ruling on requests for rehearing. All orders subsequent to the order terminating parental rights were void and thus not appealable.
     In re L.J.
     filed May 1, 2013, publication ordered May 31, 2013, Third District
     Cite as C071919
     Full text click here
 
Family Law
Posted: Friday, May 31, 2013
Juvenile court properly found that dependency jurisdiction over non-minor remaining in foster care after age 18 could be terminated based on evidence that minor was not participating in a reasonable and appropriate independent living plan, but termination of jurisdiction was premature where county did not file the report required prior to termination under Welfare and Institutions Code Sec. 391.
     In re Nadia G.
     filed May 30, 2013, Second District, Div. Three
     Cite as B243392
     Full text click here
 

 

Family Law
Posted: Thursday, May 9, 2013
A parent’s prolonged and egregious sexual abuse of the parent’s own child may provide substantial evidence to support a finding that all of that parent’s minor children are juvenile court dependents, regardless of gender and regardless of whether the parent mistreated the other children or whether they were aware of the abuse.
     In re I.J.
     filed May 9, 2013
     Cite as S204622
     Full text click here
 
Family Law
Posted: Monday, April 29, 2013
Juvenile court lacked jurisdiction to hear petition alleging failure or inability of minor’s parent or legal guardian to supervise or protect him adequately, where minor had entered the United States illegally, was apprehended by authorities and placed in the custody of a relative in another state, and had lived and attended school for at least six months there before running away to California. Under the Uniform Child Custody Jurisdiction and Enforcement Act, the relative was a "person acting as a parent" for purposes of the act’s "home state" definition, and the juvenile’s unauthorized relocation to California could not divest her of that status.
     In re Nelson B.
     filed April 26, 2013, First District, Div. One
     Cite as A136240
     Full text click here
 
Family Law
Posted: Friday, April 26, 2013
Juvenile court’s finding that it lacked dependency jurisdiction because child was not at risk for sexual abuse was error where father had molested another child in the household five or six years earlier. Court’s conclusion that passage of time had eliminated risk was error where father continued to deny the abuse, trial court found that father’s testimony lacked credibility, father did not complete sexual abuse education as required by court order, evidence showed that it was mother’s installation of locks on the doors and taking father’s key that likely stopped the abuse, and parents’ separation increased the risk. Juvenile court’s distinction between a stepdaughter and a biological daughter in determining whether younger child was at risk of sexual abuse was contrary to law.
     In re Matter of K.R.
     filed April 25, 2013, Second District, Div. Five
     Cite as B247519
     Full text click here
 
Family Law
Posted: Friday, April 26, 2013
Trial court erred in awarding substantial damages on wife’s petition alleging breach of fiduciary duty by husband, to which husband defaulted, where the petition had not indicated that wife was seeking any particular amount of damages for breach of fiduciary duty.
     In re Marriage of Kahn
     filed April 26, 2013, Fourth District, Div. Two
     Cite as E054082
     Full text click here
 
Family Law
Posted: Thursday, April 18, 2013
Family Code Sec. 1101 (h), which allows the court to award to a party in a dissolution action the other party’s entire interest in an asset, as a sanction for the other party’s failure to disclose that asset, applies only to community property.
     In re Marriage of Simmons
     filed April 18, 2013, Fourth District, Div. One
     Cite as D060557
     Full text click here
 
Family Law
Posted: Thursday, April 11, 2013
Juvenile court was not required to further pursue the possibility of a "tribal customary adoption"--a process by which a dependent Indian child is formally adopted by the tribe, with no termination of parental rights-—where tribe continued to express a preference for guardianship or return to mother and did not request a continuance to complete TCA, and a different permanent plan was supported by the evidence. Where tribe did not complete or request more time to complete TCA, juvenile court reasonably chose a permanent plan-—termination of parental rights and adoption by Native American caretakers who were not of the same tribe but who promised to maintain child’s connection to his tribe and to the broader Native American culture—-that was in child’s best interests.
     In re A.M.
     filed April 11, 2013, Third District
     Cite as C070782
     Full text click here
 
Family Law
Posted: Wednesday, April 3, 2013
Order terminating father’s parental rights was constitutionally invalid where juvenile court never made a finding that he was an unfit parent.
     In re T.G.
     filed March 6, 2013, publication ordered April 2, 2013, First District, Div. Five
     Cite as A134874
     Full text click here


Los Angeles County Bar Association
2012-2013 Family Law Section Newsletter
FAMILY LAW SECTION eNEWS
Raymond Goldstein, Editor


SECTION OFFICERS EXECUTIVE COMMITTEE MEMBERS

Chair
Lynette Berg Robe

Chair-Elect
Seth Kramer

Vice Chair
Peter M. Walzer

Treasurer
Judy L. Bogen

Secretary
Ronald F. Brot

Immediate Past Chair
Robert C. Brandt

Program & Event Administrator
Gail Coleman

Blum, Stephanie I.
Brauer, Laurel B.
Cogan, Ram
Gallegos, Rose Marie
Goldstein, Raymond
Gould-Saltman, Richard
Hadjian, Abbas
Hammers, Barbara
Kane, Paula
Karton, David S.
King, Adam N.
Levine, Marci
Medina, Randy W.
Mindel, Steven A.

Olson, Doreen Marie
Pandkhou, Parima
Pines, Cari M.
Reyes, Lucia A.
Ribet, Claudia
Shebby, David
Shiell, Warren R.
Spirito, Joe
Sturman, Jeff M.
Trope, Sorrell
Tuffias, Heidi S.
Waller, Marshall
Yamamoto, David
JUDICIAL OFFICERS PAST CHAIRS PARTICIPATING ON THE EXECUTIVE COMMITTEE

Hon. John Chemeleski
Hon. Scott M. Gordon
Hon. Mark A Juhas
Hon. Thomas Trent Lewis
Hon. B. Scott Silverman

Roberta Bennett
Robert C. Brandt
Harold J. Cohn
James R. Eliaser
Debra S. Frank
Ira M. Friedman
William J. Glucksman
Lawrence E. Leone
Dvorah Markman
Leonard J. Meyberg Jr.
Glen Schwartz

LIAISONS

Tai Glenn
Tracy Katz, CPA/CFF
David Kuroda, LCSW
Margaret A. Little, Ph.D.
Mary Lund, Ph.D
Phillip J. Monahan
Irwin Nachimson
Paul J. White, CPA