California Family Code section 4062 states, “(a) The court shall order the following as additional child support: (1) Child care costs related to employment or to reasonably necessary education or training for employment skills. (2) The reasonable uninsured health care costs for the children as provided in Section 4063.
There are three types of marital actions in California: dissolution (regular or summary), legal separation and nullity.
In California, dissolution is granted on only two grounds: (1) irreconcilable differences or (2) incurable insanity. Cal. Fam. Code § 2310. Court are generally very liberal in the interpretation of whether or not there are irreconcilable differences in a marriage; however, if there is a reasonable possibility of reconciliation, the court must continue the proceeding for no more than 30 days. Cal. Fam. Code § 2334.
A Judgment of Legal Separation may be granted only if (1) both parties consent or (2) the respondent does not appear and the petition requested a legal separation. Cal. Fam. Code § 2345.
For a Judgment of Dissolution, there is a residency requirement that at least one of the parties must have been a resident of California for 6 months and of the county in which the petition was filed for 3 months, immediately preceding the filing of the petition. Cal. Fam. Code § 2320(a). This residency requirement is mandatory and can’t be waived. However, for legal separation, there is no residency requirement.
The third marital action, nullity, may be granted only when a marriage is adjudged void or voidable under conditions provided by statute. In brief, a marriage is void in cases of incest (Cal. Fam. Code § 2200) and bigamy (Cal. Fam. Code § 2201), and is voidable in cases of minority, a current spouse mistakenly believed to be deceased, unsound mind, fraud, force, and physical incapacity (Cal. Fam. Code § 2210).
Unlike a dissolution action, there is no residency require for a Judgment of Nullity. And, unlike a Judgment of Legal Separation, there is no requirement for consent or default. The effect of a Judgment of Nullity is to erase the marriage. It is as though the parties were never married.
Do you have specific questions about which of the above marital actions you should file? Please call us.
Did your ex-spouse recently move to California from another state and you want to enforce a Child Support Order against him or her? There are several things you need to know.
First, you will need to register the foreign (or out of state) order with a California court. Per California Family Code section 4951(a), the registrant must submit the following documents:
“(1) A letter of transmittal to the tribunal requesting registration and enforcement. (2) Two copies, including one certified copy, of all orders to be registered, including any modification of an order. (3) A sworn statement by the party seeking registration or a certified statement by the custodian of the records showing the amount of any arrearage. (4) The name of the obligor and, if known: (i) The obligor's address and social security number;(ii) The name and address of the obligor's employer and any other source of income of the obligor; and (iii) A description and the location of property of the obligor in this state not exempt from execution. (5) The name and address of the obligee and, if applicable, the agency or person to whom support payments are to be remitted.”
Once registered, the foreign order is enforceable in the same manner and is subject to the same procedures as an order issued by a California court. (California Family Code section 4952(b)).
However, what about modifying the out of state Child Support Order? Does California have the jurisdiction to modify the out of state Child Support Order? Generally, no. California may not exercise jurisdiction to modify an out of state Child Support Order, if the issuing state had both subject matter jurisdiction and personal jurisdiction at the time that the order was made. (See California Family Code section 4952(c)). The Uniform Interstate Family Support Act, which is codified at California Family Code sections 4900-5005, provides the statutory framework to establish the proper jurisdictional grounds.
While the general answer regarding modification is no, there are exceptions. Per California Family Code section 4962, a California court can modify a foreign Child Support Order if all of the parties to the case reside in this state (California) and the child does not reside in the issuing state, California would have jurisdiction to enforce and to modify the issuing state’s Child Support Order.
Further, California Family Code section 4960, a California code can modify a Child Support Order if, after notice and a hearing, the California court finds either of the following:
“(1) The child, individual obligee, and obligor do not reside in the issuing state; a petitioner who is a nonresident of California seeks modification; and the respondent is subject to the personal jurisdiction of the California tribunal; or
(2) The child, or a party who is an individual, is subject to the personal jurisdiction of the California tribunal, and all of the parties who are individuals have filed written consents in the issuing tribunal for a California tribunal to modify the support order and assume continuing exclusive jurisdiction (with a special exception if the issuing state is a foreign jurisdiction).”
Nevertheless, a California court may issue a temporary child support order on an ex parte basis, or pending the resolution of a jurisdictional dispute. That order is not itself sufficient to create continuing jurisdiction over the child support issue. California Family Code section 4909(e).
If you need help in enforcing or modifying an out of state Child Support Order and have questions about the jurisdictional issues, contact experienced family law attorneys at the Law Office of Taylor B. Warner, APLC.
Often times in child custody cases, one parent will request the other party be required to complete a drug test. The reasoning behind the request may be because of an incident that occurred or an admission by the parent.
Because the Court bases a determination of child custody orders on the best interests of the child, under California Family Code section 3011, the Court has been given a tool to monitor drug use in certain cases.
California Family Code section 3041.5 states, “[The] court may order any person who is seeking custody of, or visitation with, a child who is the subject of the proceeding to undergo testing for the illegal use of controlled substances and the use of alcohol if there is a judicial determination based upon a preponderance of evidence that there is the habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol by the parent, legal custodian, person seeking guardianship, or person seeking visitation in a guardianship.” Stated more clearly, any person suspected of “habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol” who is seeking visitation or custody may be required to undergo drug or alcohol testing.
The question then becomes, how does one parent show this “habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol’? The code section states that it must be shown by a preponderance of the evidence. Preponderance of the evidence basically means “most likely than not” or 50% + 1.
So, if a parent is trying to prove drug or alcohol use by another party, they need to show the parent “more likely than not” habitually, frequently or continually has used drugs or alcohol.
What are examples of types of evidence? Thankfully, the code is also very clear about the types of evidence that can be used, stating, “This evidence may include, but may not be limited to, a conviction within the last five years for the illegal use or possession of a controlled substance.” Not all drug or alcohol users will have a conviction regarding their habit, so an admission of one parent, testimony of individuals, or workplace concerns all can be used to help a parent meet the threshold of “more likely than not”.
If you are concerned about another party in your child custody case using and/or abusing drugs or alcohol, please call Bristol & Haynes, APLC at 909-466-5575 for a consultation.