California Marital Settlements: August 2004 Summary

Legal Developments

California Supreme Court emphasizes " best interests of the child " as overriding factor in move-away cases.

The inequities of In re Marriage of Burgess have been largely ameliorated by In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 12 Cal.Rptr.3d 356, which permits a de novo custody review if the noncustodial parent can show that the move will be detrimental to the child. Although a label of joint physical custodian is still of some value, as a practical matter if the noncustodial parent cannot show some detriment to the child from the move, it is unlikely that s/he would be able to prevent it regardless of how custody is labeled. Thus, the custodial label used is now significantly less important than it was. LaMusga's primary holdings were:

(1) "[J]ust as a custodial parent does not have to establish that a planned move is 'necessary,' neither does the noncustodial parent have to establish that a change of custody is 'essential' to prevent detriment to the children from the planned move." ( Id . at p. 1078.)

(2)" [T]he noncustodial parent bears the initial burden of showing that the proposed relocation of the children's residence would cause detriment to the children, requiring a reevaluation of the children's custody." ( Ibid .)

(3) "The likely impact of the proposed move on the noncustodial parent's relationship with the children is a relevant factor in determining whether the move would cause detriment to the children and, when considered in light of all of the relevant factors, may be sufficient to justify a change in custody." ( Ibid .)

(4) "If the noncustodial parent makes such an initial showing of detriment, the court must perform the delicate and difficult task of determining whether a change in custody is in the best interests of the children." ( Ibid .)

(5) "A change in custody is 'essential or expedient' within the meaning of Burgess . . . if it is in the best interests of the child." ( Id . at p. 1098.)

(6) Conditional change of custody orders are permissible so long as their primary purpose is not to coerce a custodial parent into abandoning a proposed move.

(7) "[T]he court must consider the past conduct of the parents in fashioning a custody order that serves the best interests of the children." ( Id . at p. 1094.)

(8) A move may constitute a change of circumstances for the purposes of modifying custody.

(9) Judges must be free to exercise discretion to fashion orders that best serve the interests of the children in the cases before them.

(10) The reasons for a proposed move are relevant even if the custodial parent is acting in good faith.

(11) "[T]his area of law is not amenable to inflexible rules." ( Id . at p. 1101.)

Law and Strategy updated at Questions 490 and 493.

Soldiers' and Sailors' Civil Relief Act of 1940 replaced by Servicemembers Civil Relief Act

“USFSPA” (the Uniformed Services Former Spouses' Protection Act, 10 U.S.C. §1408(c)(4)) now requires that Military retirement division orders must “certify that the rights of the member under the Servicemembers Civil Relief Act (50 U.S.C.App. 501 et seq.) were observed...." Prior to December 19, 2003 , the referenced act was the "Soldiers' and Sailors' Civil Relief Act of 1940." Document language updated; Law and Strategy updated at Questions 281and 283.

"Gift" of jewelry by one spouse to another held to be community property

Jewelry that one receives as a gift from his/her spouse will normally be separate property, unless the value is substantial "taking into account the circumstances of the marriage." (Fam. Code §852(c).) "Substantial" is a question of fact for the trial court. In re Marriage of Rosendale (2004) 119 Cal.App.4th 1202, 15 Cal.Rptr.3d 137, held that a $15,000 necklace was of substantial value and required a writing to transmute it as a gift. Law and Strategy updated at Questions 114 and 115.

For purposes of guideline support calculation the time that children spend in the care of third parties should be allocated between them in proportion to their respective responsibilities for the children while they are there.

DaSilva v. DaSilva (2004) 119 Cal.App.4th 1030, 15 Cal.Rptr.3d 59, noted that the guideline support timeshare factor is not necessarily the same as the percentage of physical custody. For example, time the children are in school should be allocated depending upon factors such as: (1) who pays for transportation or who transports the child; (2) who is designated to respond to medical or other emergencies; (3) who was responsible for paying tuition (if any) or incidental school expenses; and (4) who participates in school activities, fundraisers, or other school-related functions. Law and Strategy updated at Question 438.

Compelling circumstances held to justify split custody of siblings

In In re Marriage of Steiner & Hosseini (2004) 117 Cal.App.4th 519, 11 Cal.Rptr.3d 671, review denied (Aug 11, 2004), the court of appeal upheld an order separating siblings where the evidence showed that was perhaps the only way to prevent the child in the father's care from being alienated, as was the older child in the mother's care. Law and Strategy updated at Question 493.

Updated Product Features

New Option to Divide Personal Injury or Worker's Comp Award

You may now specify that an award for personal injury or worker's compensation is confirmed as the separate property of its recipient or divide it per agreement. You may also specify that the community property first be reimbursed for expenses incurred. Question 142; New Questions 151-158.

New Option to Specify Visitation Restrictions

You may now specify that the non-custodial parent's visitation be restricted in terms of 1) alcohol usage, 2) controlled substance usage, 3) specified dangerous activities, 4) spending the night with a person of the opposite sex, and/or 5) any other custom restriction. You may also specify a further restriction on the use of alcohol and/or controlled substances for a specified number of hours before each visitation. New Questions 507-512.

New AutoSave Function

You should continue to save your answer file as you work, especially before you exit the program.  Lawgic continues to prompt you to do so.  However sometimes you may forget, or a power outage may shut down your computer when you have not saved for some time.  A new AutoSave feature can help you recover more of your work.  Lawgic now automatically saves a separate copy of your answer file to LGCTMP00.ANS roughly every fifteen questions.  Please read Help, Help, Advanced Features, Recovering Your Work, for detailed instructions on using this file.  If you are using a flag file the AutoSave feature will also save a separate copy of your flag file to LGCTMP00.FLG.

New Warning Message when Lawgic is Already Running

Only one instance of Lawgic may run at a time.  Previously, an inadvertent attempt to start a second instance would open a new Lawgic window but the “Select Title/File” box would never appear.  Now, an attempt to start a second instance of Lawgic will display a “Lawgic Already Running” warning box.

New Option to Cancel Application Close Button