SELECTED NEW LAWS FOR 2002 - FAMILY LAW
Presumption against
Batterers: (Family Code §3044) as Amended
"Originally I was very much in favor of this
law:"
However, some of the judges and the
legislature have bastardized the law by not applying it in a fair and
evenhanded manner. To make matters worse, the legislature has amended the law
to make it even more restrictive. In an effort to make the law more
restrictive the legislature has removed the section making this section
inapplicable when both parents have committed domestic violence. This law is
definitely pro-woman and anti-male. It almost presumes that the
"perpetrator" will be male. Men it is time to get involved.
"FAMILY CODE §3044. (as
amended)
(a) Upon a finding by the court that a party
seeking custody of a child has perpetrated domestic violence against the other
party seeking custody of the child or against the child or the child's siblings
within the previous five years, there is a rebuttable presumption that an award
of sole or joint physical or legal custody of a child to a person who has
perpetrated domestic violence is detrimental to the best interest of the child,
pursuant to Section 3011. This presumption may only be rebutted by a
preponderance of the evidence.
(b) In
determining whether the presumption set forth in subdivision (a) has been
overcome, the court shall consider all of the following factors:
(1) Whether the perpetrator of domestic violence has demonstrated that giving
sole or joint physical or legal custody of a child to the perpetrator is in the
best interest of the child. In determining the best interest of the child, the
preference for frequent and continuing contact with both parents, as set forth
in subdivision (b) of Section 3020, or with the noncustodial parent, as set
forth in paragraph (1) of subdivision (a) of Section 3040, may not be used to
rebut the presumption, in whole or in part.
(2) Whether the perpetrator has successfully completed a batterer's treatment
program that meets the criteria outlined in subdivision (c) of Section 1203.097
of the Penal Code.
(3) Whether the perpetrator has successfully completed a program of alcohol or
drug abuse counseling if the court determines that counseling is appropriate.
(4) Whether the perpetrator has successfully completed a parenting class if the
court determines the class to be appropriate.
(5) Whether the perpetrator is on probation or parole, and whether he or she has
complied with the terms and conditions of probation or parole.
(6) Whether the perpetrator is restrained by a protective order or restraining
order, and whether he or she has complied with its terms and conditions.
(7) Whether the perpetrator of domestic violence has committed any further acts
of domestic violence.
(c) For purposes of this section, a person has "perpetrated domestic violence"
when he or she is found by the court to have intentionally or recklessly caused
or attempted to cause bodily injury, or sexual assault, or to have placed a
person in reasonable apprehension of imminent serious bodily injury to that
person or to another, or to have engaged in any behavior involving, but not
limited to, threatening, striking, harassing, destroying personal property or
disturbing the peace of another, for which a court may issue an ex parte order
pursuant to Section 6320 to protect the other party seeking custody of the child
or to protect the child and the child's siblings.
(d) (1) For purposes of this section, the requirement of a finding by the court
shall be satisfied by, among other things, and not limited to, evidence that a
party seeking custody has been convicted within the previous five years, after a
trial or a plea of guilty or no contest, of any crime against the other party
that comes within the definition of domestic violence contained in Section 6211
and of abuse contained in Section 6203, including, but not limited to, a crime
described in subdivision (e) of Section 243 of, or Section 261, 262, 273.5, 422,
or 646.9 of, the Penal Code.
(2) The requirement of a finding by the court shall also be satisfied if any
court, whether that court hears or has heard the child custody proceedings or
not, has made a finding pursuant to subdivision (a) based on conduct occurring
within the previous five years.
(e) When a court makes a finding that a party has perpetrated domestic violence,
the court may not base its findings solely on conclusions reached by a child
custody evaluator or on the recommendation of the Family Court Services staff,
but shall consider any relevant, admissible evidence submitted by the parties.
(f) In any custody or restraining order proceeding in which a party has alleged
that the other party has perpetrated domestic violence in accordance with the
terms of this section, the court shall inform the parties of the existence of
this section and shall give them a copy of this section prior to any custody
mediation in the case.
Wage Assignments: (Family
Code §5241)
"The child support obligee or the local child support
agency upon application may obtain an order requiring payment of support by
electronic transfer from the employer's bank account when the employer has
willfully failed to comply with the assignment order or when the employer has
otherwise failed to comply with the assignment order on 3 separate occasions
within a 12-month period. In addition, the court may impose a civil penalty
on the employer of up to 50% of the support amount that has not been received
by the obligee under specified circumstances. In addition, the employer can
be held liable to the obligee for any interest incurred as a result of the
employer's failure to forward the payment pursuant to the assignment order."
This means that when the deadbeat parent's company will not enforce a Court Ordered
Wage Assignment Order, the Court may order a direct electronic
transfer of the funds from the deadbeats company's own bank account. In
addition, there are civil penalties. This is good news.
Domestic Violence: (Family
Code §6380, §6383;
P.C. §136.2)
"A criminal
restraining order or protective order has precedence in enforcement over any
civil court order that pertains to the same persons. The Judicial Council is
to promulgate a protocol, for adoption by local courts, to provide for
coordination of all orders regarding the same persons. The protocol is to
include mechanisms for communication and information sharing, and permit
family or juvenile court orders to coexist with criminal court orders as long
as the orders protect the safety of the parties, as specified.
A court that
modifies, extends, or terminates an order protecting a victim of violent crime
from contact with the defendant to transmit that modification, extension, or
termination to the law enforcement agency that entered the protective order
into the Domestic Violence Restraining Order System. Modifications,
extensions, and terminations of orders protecting victims of violent crime
from contact with the defendant must be issued on forms adopted by the
Judicial Council and approved by the Department of Justice."
Basically this
sets up a system or protocol for the Court to keep track of restraining orders
issues by other courts. This will mean that the Court will be able to track
what an individual is doing in any Court. It's better than nothing.
Domestic Violence: (Family Code
§6210)
This clarifies
what is meant by a "Dating Relationship" and changes the
definition used in Family Code §6211(c); Under the new Definition, A
“dating relationship” is defined as “frequent, intimate
associations primarily characterized by the expectation of affection or sexual
involvement independent of financial considerations.”
This will help the Police in being able to more aggressively assist people who
are battered when they are just "dating." If you compare
the prior law to this one, it would appear that the legislature was more
concerned in being sure that everyone understands that dating means having sex
without a financial component. i.e If you pay for sex then it's prostitution.
Get it.
Marital Property and Debts: (Family Code §914)
"An action
based upon the marital liability of a deceased spouse must be commenced
within a one-year period. However, If the surviving spouse had actual
knowledge of the debt prior to expiration of the one-year period and the
personal representative of the deceased spouse's estate failed to provide the
creditor asserting the claim under this section with a timely written notice
of the probate administration of the estate in the manner provided for
pursuant to Section 9050 of the Probate Code, the statute of limitations set
forth in Section 337 [4 years for written contract] or 339 [2 years for oral
contract], as applicable, shall apply."
This
just means that if you were married and your spouse died, leaving debts you
have one-year to take action, subject to a few exceptions.
Marital Property and Debts: (F.C. §1101, 2100 - 2107, & 2122)
A. The
fiduciary duty now includes the obligation to provide the other party with “an
immediate, full and accurate update or augmentation. to the extent there have
been any material changes” in the assets or liabilities.
B. The
disclosure must contain any investment opportunity, business opportunity, or
income-producing opportunity that presents itself after the date of
separation, but that results from any investment, business activity, or other
income-producing opportunity of either spouse from the date of marriage to the
date of separation, inclusive. The written disclosure must be made in time
for the other spouse to make an informed decision as to whether he or she
desires to participate in the business or other potential income-producing
opportunity. The court is to have the power to resolve any dispute regarding
the right of the other spouse to participate in the opportunity. Specified
standards apply to all activities that affect the assets or liabilities of the
other spouse, and the income or expenses of the party.
C. The
fiduciary duty continues from the date that a valid, enforceable, and binding
resolution of the disposition of the asset or liability in question is
reached, until the asset or liability has actually been distributed.
D. From
the date of separation to the date of a valid, enforceable, and binding
resolution of all issues relating to child or spousal support and professional
fees, each party has fiduciary obligations as to all issues relating to the
support and fees, including immediate, full, and accurate disclosure of all
material facts and information regarding the income or expenses of the party.
This section
deals with the duty each spouse owes to the other for fair dealing in
disclosing assets and debts.
PREMARITAL AGREEMENTS: (F.C. §1612 &
§1615)
This is a
backlash from the "BONDS" case. The legislature now has set specific criteria
for the Court to use in determining the validity of a Premarital
agreement. While many of you may not use this document, you should be aware of
it.
"When it
rules that the premarital agreement was executed voluntarily the court must
make the following findings:
(1) The
party against whom enforcement is sought was represented by independent legal
counsel at the time of signing the agreement or, after being advised to seek
independent legal counsel, expressly waived, in a separate writing,
representation by independent legal counsel.
(2)
The party against whom enforcement is sought had not less than seven calendar
days between the time that party was first presented with the agreement and
advised to seek independent legal counsel and the time the agreement was
signed.
(3) The
party against whom enforcement is sought, if unrepresented by legal counsel,
was fully informed of the terms and basic effect of the agreement as well as
the rights and obligations he or she was giving up by signing the agreement,
and was proficient in the language in which the explanation of the party's
rights was conducted and in which the agreement was written. The explanation
of the rights and obligations relinquished shall be memorialized in writing
and delivered to the party prior to signing the agreement. The unrepresented
party shall, on or before the signing of the premarital agreement, execute a
document declaring that he or she received the information required by this
paragraph and indicating who provided that information.
(4) The
agreement and the writings executed pursuant to paragraphs (1) and (3) were
not executed under duress, fraud, or undue influence, and the parties did not
lack capacity to enter into the agreement. (5) Any other factors the court
deems relevant.
A
provision in a premarital agreement regarding spousal support, including, but
not limited to, a waiver of it, is not enforceable if the party against whom
enforcement of the spousal support provision is sought was not represented by
independent counsel, or if the provision regarding spousal support is
unconscionable at the time of enforcement. An otherwise unenforceable
provision in a premarital agreement regarding spousal support does not become
enforceable solely because the party against whom enforcement is sought was
represented by independent counsel."
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