California Divorce Statutes | Family Code - Section 3010-3011 Custody
3010. (a) The mother of an unemancipated minor child and the father, if presumed to be the father under Section 7611, are equally entitled to the custody of the child.
(b) If one parent is dead, is unable or refuses to take custody, or has abandoned the child, the other parent is entitled to custody of the child.
3011. In making a determination of the best interest of the child in a proceeding described in Section
3021 California divorce statutes, the court shall, among any other factors it finds relevant, consider all of the following:
(a) The health, safety, and welfare of the
child.
(b) Any history of abuse by one parent or any other person seeking custody against any
of the following:
(1) Any child to whom he or she is related by blood or affinity or with whom he or she has had a caretaking relationship, no matter how temporary.
(2) The other parent.
(3) A parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship. As a prerequisite to the consideration of allegations of abuse, the court may require substantial independent corroboration, including, but not limited to, written reports by law enforcement agencies, child protective services or other social welfare agencies, courts, medical facilities, or other public agencies or private nonprofit organizations providing services to victims of sexual assault or
domestic violence. As used in this subdivision, 'abuse against a child' means 'child abuse' as defined in Section 11165.6 of the Penal Code and abuse against any of the other persons described in paragraph (2) or (3) means 'abuse' as defined in Section 6203 of this code.
(c) The nature and amount of contact with both parents, except as provided in Section 3046.
(d) The habitual or continual illegal use of controlled substances or habitual or continual abuse of alcohol by either parent. Before considering these allegations, the court may first require independent corroboration, including, but not limited to, written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical facilities, rehabilitation facilities, or other public agencies or nonprofit organizations providing drug and alcohol abuse services. As used in this subdivision, 'controlled substances' has the same meaning as defined in the California Uniform Controlled Substances Act, Division 10 (commencing with Section 11000) of the Health and Safety Code.
(e) (1) Where allegations about a parent pursuant to subdivision (b) or (d) have been brought to the attention of the court in the current proceeding, and the court makes an order for sole or joint custody to that parent, the court shall state its reasons in writing or on the record. In these circumstances, the court shall ensure that any order regarding custody or visitation is specific as to time, day, place, and manner of transfer of the child as set forth in subdivision (b) of Section 6323.
(2) The provisions of this subdivision shall not apply if the parties stipulate in writing or on the record regarding custody or visitation. California
Divorce Statutes | Family Code - Section 3080-3089 Chapter 4. Joint Custody
3080. There is a presumption, affecting the burden of proof, that joint custody is in the best interest
of a minor child, subject to Section 3011, where the parents have agreed to joint custody or so agree in open court at a
hearing for the purpose of determining the custody of the minor child.
3081. On application of either parent, joint custody may be ordered in the discretion of the court in cases
other than those described in Section 3080, subject to Section 3011. For the purpose of assisting the court in making a determination
whether joint custody is appropriate under this section, the court may direct that an investigation be conducted pursuant
to Chapter 6 (commencing with Section 3110).
3082. When a request for joint custody is granted or denied, the court, upon the request of any party, shall
state in its decision the reasons for granting or denying the request. A statement that joint physical custody is, or is
not, in the best interest of the child is not sufficient to satisfy the requirements of this section.
3083. In making an order of joint legal custody, the court shall specify the circumstances under which the consent
of both parents is required to be obtained in order to exercise legal control of the child and the consequences of the failure
to obtain mutual consent. In all other circumstances, either parent acting alone may exercise legal control of the child.
An order of joint legal custody shall not be construed to permit an action that is inconsistent with the physical custody
order unless the action is expressly authorized by the court.
3084. In making an order of joint physical
custody, the court shall specify the rights of each parent to physical control of the child in sufficient detail to enable
a parent deprived of that control to implement laws for relief of child snatching and kidnapping.
3085. In making an order for custody with respect to both parents, the court may grant joint legal custody
without granting joint physical custody.
3086. In making an order of joint physical custody or joint legal custody, the court may specify one parent
as the primary caretaker of the child and one home as the primary home of the child, for the purposes of determining eligibility
for public assistance.
3087. An order for joint custody may be modified or terminated upon the petition of one or both parents or on the
court's own motion if it is shown that the best interest of the child requires modification or termination of the order.
If either parent opposes the modification or termination order, the court shall state in its decision the reasons for modification
or termination of the joint custody order.
3088. An order for the custody of a minor child entered by a court in this state or any other state may, subject
to the jurisdictional requirements in Sections 3403 and 3414, be modified at any time to an order for joint custody in accordance
with this chapter.
3089. In counties having a conciliation court, the court or the parties may, at any time, pursuant to local rules
of court, consult with the conciliation court for the purpose of assisting the parties to formulate a plan for implementation
of the custody order or to resolve a controversy which has arisen in the implementation of a plan for custody.
If you
and your soon-to-be-ex are divorcing, and you have children together, the court will order an acceptable Parenting
Plan be a part of your overall divorce agreement. You (both) have an opportunity to create and agree to your own Parenting
Plan. Should that effort fail, the court will order portions of the agreement plan with little or no discussion from you.
You should make every effort to come up with your own plan (use a Parenting
Plan Template) so that you don't get stuck with a parenting plan you are unhappy or unsatisfied with.
Back to Top↑
California Family Code - Section 3040-3048 :: Chapter 2. Matters To Be Considered In Granting Custody |
 |
California Divorce Statutes | Section 2010-2013 :: Chapter
2. Jurisdiction-Annulments
2010. In a proceeding for dissolution of marriage, for nullity of marriage, or for legal separation of the parties, the court has jurisdiction to inquire into and render any judgment and make orders that are appropriate concerning the following:
(a) The status of the marriage.
(b) The custody of minor children of the marriage.
(c) The support of children for whom support may be ordered, including children born after the filing of the initial petition or the final decree of dissolution.
(d) The support of either party.
(e) The settlement of the property rights of the parties.
(f) The award of attorney's fees and costs.
2011. When service of summons on a spouse is made pursuant to Section 415.50 of the Code of Civil Procedure, the court, without the aid of attachment or the appointment of a receiver, shall have and may exercise the same jurisdiction over:
(a) The community real property of the spouse so served situated in this state as it has or may exercise over the community real property of a spouse who is personally served with process within this state.
(b) The quasi-community real property of the spouse so served situated in this state as it has or may exercise over the quasi-community real property of a spouse who is personally served with process within this state.
2012. (a) During the time a motion pursuant to Section 418.10 of the Code of Civil Procedure is pending, the respondent may appear in opposition to an order made during the pendency of the proceeding and the appearance shall not be deemed a general appearance by the respondent.
(b) As used in this section, a motion pursuant to Section 418.10 of the Code of Civil Procedure is pending from the time notice of motion is served and filed until the time within which to petition for a writ of mandate has expired or, if a petition is made, until the time final judgment
in the mandate proceeding is entered.
2013. (a) If a written agreement is entered into by the parties, the parties may utilize a collaborative law process to resolve any matter governed by this code over which the court is granted jurisdiction pursuant to Section 2000.
(b) "Collaborative law process" means the process in which the parties and any professionals engaged by the parties to assist them agree in writing to use their best efforts and to make a good faith attempt to resolve disputes related to the family law matters as referenced in subdivision (a) on an agreed basis without resorting to adversary judicial intervention.
California divorce statutes Section 2020-2026 :: Chapter 3. Procedural Provisions
2020. A responsive pleading, if any, shall be filed and a copy served on the petitioner within 30 days of the date of the service on the respondent of a copy of the petition and summons.
2021. (a) Subject to subdivision (b), the court may order that a person who claims an interest in the proceeding be joined as a party to the proceeding in accordance with rules adopted by the Judicial Council pursuant to Section 211.
(b) An employee benefit plan may be joined as a party only in accordance with Chapter 6 (commencing with Section 2060).
2022. (a) Evidence collected by eavesdropping in violation of Chapter 1.5
(commencing with Section 630) of Title 15 of Part 1 of the Penal Code is inadmissible.
(b) If it appears that a violation described in subdivision (a) exists, the court may refer the matter to the proper authority for investigation and prosecution.
2023. (a) On a determination that payment of an obligation of a party would benefit either party or a child for whom support may be ordered, the court may order one of the parties to pay the obligation, or a portion thereof, directly to the creditor.
(b) The creditor has no right to enforce the order made under this section, nor are the creditor's rights affected by the determination made under this section.
2024. (a) A petition for dissolution of marriage, nullity of marriage, or legal separation
of the parties, or a joint petition for summary dissolution of marriage, shall contain the following notice: "Dissolution
or annulment of your marriage may automatically cancel your spouse's rights under your will, trust, retirement benefit plan,
power of attorney, pay on death bank account, transfer on death vehicle registration, survivorship rights to any property
owned in joint tenancy, and any other similar thing. It does not automatically cancel your spouse's rights as beneficiary
of your life insurance policy. If these are not the results that you want, you must change your will, trust, account agreement,
or other similar document to reflect your actual wishes. Dissolution or annulment of your marriage may also automatically
cancel your rights under your spouse's will, trust, retirement benefit plan, power of attorney, pay on death bank account,
transfer on death vehicle registration, and survivorship rights to any property owned in joint tenancy, and any other similar
thing. It does not automatically cancel your rights as beneficiary of your spouse's life insurance policy. You should review
these matters, as well as any credit cards, other credit accounts, insurance policies, retirement benefit plans, and
credit reports to determine whether they should be changed or whether you should take any other actions in view of
the dissolution or annulment of your marriage, or your legal separation. However, some changes may require the agreement
of your spouse or a court order (see Part 3 (commencing with Section 231) of Division 2 of the Family Code)."
(b) A judgment for dissolution of marriage, for nullity of marriage, or for
legal separation of the parties shall contain the following notice: "Dissolution or annulment of your marriage may
automatically cancel your spouse's rights under your will, trust, retirement benefit plan, power of attorney, pay on death
bank account, transfer on death vehicle registration, survivorship rights to any property owned in joint tenancy, and any
other similar thing. It does not automatically cancel your spouse's rights as beneficiary of your life insurance policy.
If these are not the results that you want, you must change your will, trust, account agreement, or other similar document
to reflect your actual wishes. Dissolution or annulment of your marriage may also automatically cancel your rights under
your spouse's will, trust, retirement benefit plan, power of attorney, pay on death bank account, transfer on death vehicle
registration, survivorship rights to any property owned in joint tenancy, and any other similar thing. It does not automatically
cancel your rights as beneficiary of your spouse's life insurance policy. You should review these matters, as well as any
credit cards, other credit accounts, insurance policies, retirement benefit plans, and credit reports to determine whether
they should be changed or whether you should take any other actions in view of the dissolution or annulment of your marriage,
or your legal separation."
2024.5. (a) Except as provided in subdivision (b), the petitioner or respondent may redact any social security
number from any pleading, attachment, document, or other written material filed with the court pursuant to a petition for
dissolution of marriage, nullity of marriage, or legal separation. The Judicial Council form used to file such a petition,
or a response to such a petition, shall contain a notice that the parties may redact any social security numbers from those
pleadings, attachments, documents, or other material filed with the court.
(b) An abstract of support judgment, the form required pursuant to subdivision
(b) of Section 4014, or any similar form created for the purpose of collecting child or spousal support payments may not
be redacted pursuant to subdivision (a).
2024.6. (a) Upon request by a party to a petition for dissolution
of marriage, nullity of marriage, or legal separation, the court shall order a pleading that lists the parties' financial
assets and liabilities and provides the location or identifying information about those assets and liabilities sealed. The
request may be made by ex parte application. Nothing sealed pursuant to this section may be unsealed except upon petition
to the court and good cause shown.
(b) Commencing not later than July 1, 2005, the Judicial Council form used
to declare assets and liabilities of the parties in a proceeding for dissolution of marriage, nullity of marriage, or legal
separation of the parties shall require the party filing the form to state whether the declaration contains identifying information
on the assets and liabilities listed therein. If the party making the request uses a pleading other than the Judicial Council
form, the pleading shall exhibit a notice on the front page, in bold capital letters, that the pleading lists and identifies
financial information and is therefore subject to this section.
(c) For purposes of this section, "pleading" means a document that
sets forth or declares the parties' assets and liabilities, income and expenses, a marital settlement agreement that lists
and identifies the parties' assets and liabilities, or any document filed with the court incidental to the declaration or
agreement that lists and identifies financial information.
(d) The party making the request to seal a pleading pursuant to subdivision
(a) shall serve a copy of the pleading on the other party to the proceeding and file a proof of service with the request
to seal the pleading.
(e) Nothing in this section precludes a party to a proceeding described in
this section from using any document or information contained in a sealed pleading in any manner that is not otherwise prohibited
by law.
2025. Notwithstanding any other provision of law, if the court has ordered an issue or issues bifurcated
for separate trial or hearing in advance of the disposition of the entire case, a court of appeal may order an issue or issues
transferred to it for hearing and decision when the court that heard the issue or issues certifies that the appeal is appropriate.
Certification by the court shall be in accordance with rules promulgated by the Judicial Council.
2026. The reconciliation of the parties, whether conditional or unconditional, is an ameliorating factor
to be considered by the court in considering a contempt of an existing court order.
Back to Top↑ |
|
California Divorce Statutes | Section 750-755 :: Chapter
3. Property Rights.
750. A husband and wife may hold property as joint tenants or tenants in common, or as community property, or as community property with a right of survivorship.
751. The respective interests of the husband and wife in community property during
continuance of the marriage relation are present, existing, and equal interests.
752. Except as otherwise provided by statute, neither husband nor wife has any interest in the separate property of the other.
753. Notwithstanding Section 752 and except as provided in Article 2 (commencing with Section 2045), Article 3 (commencing with Section 2047), or Article 4 (commencing with Section 2049) of Chapter 4 of Part 1 of Division 6, neither spouse may be excluded from the other's dwelling.
754. If notice of the pendency of a proceeding for dissolution of the marriage, for nullity of the marriage, or for legal separation of the parties is recorded in any county in which the husband or wife resides on real property that is the separate property of the other, the real property shall not for a period of three months thereafter be transferred, encumbered, or otherwise disposed of voluntarily or involuntarily without the joinder of both spouses, unless the court otherwise orders.
California divorce statutes Section 760-761 :: Chapter 1. Community Property
760. Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.
761. (a) Unless the trust instrument or the instrument of transfer expressly provides otherwise, community property that is transferred in trust remains community property during the marriage, regardless of the identity of the trustee, if the trust, originally or as amended before or after the transfer, provides that the trust is revocable as to that property during the marriage and the power, if any, to modify the trust as to the rights and interests in that property during the marriage may be exercised only with the joinder or consent of both spouses.
(b) Unless the trust instrument expressly provides otherwise, a power to revoke as to community property may be exercised by either spouse acting alone. Community property, including any income or appreciation, that is distributed
or withdrawn from a trust by revocation, power of withdrawal, or otherwise, remains community property unless there is a valid transmutation of the property at the time of distribution or withdrawal.
(c) The trustee may convey and otherwise manage and control the trust property in accordance with the provisions of the trust without the joinder or consent of the husband or wife unless the trust expressly requires the joinder or consent of one or both spouses.
(d) This section applies to a transfer made before, on, or after July 1, 1987.
(e) Nothing in this section affects the community character of property that is transferred before, on, or after July 1, 1987, in any manner or to a trust other than described in this section.
California divorce statutes Section 770-772 :: Chapter 2. Separate Property
770. (a) Separate property of a married person includes all of the following:
(1) All property owned by the person before marriage.
(2) All property acquired by the person after marriage by gift, bequest, devise, or descent.
(3) The rents, issues, and profits of the property described in this section.
(b) A married person may, without the consent of the person's spouse, convey the person's separate property.
771. (a) The earnings and accumulations of a spouse and the minor children living with, or in the custody of, the spouse, while living separate and apart from the other spouse, are the separate property of the spouse.
(b) Notwithstanding subdivision (a), the earnings and accumulations of an unemancipated minor child related to a contract of a type described in Section 6750 shall remain the sole legal property of the minor child.
772. After entry of a judgment of legal separation of the parties, the earnings or accumulations of each party are the separate property of the party acquiring the earnings or accumulations.
California divorce statutes Section 1100-1103 :: Part 4. Management And Control Of Marital Property
1100. (a) Except as provided in subdivisions (b), (c), and (d) and Sections 761 and 1103, either spouse has the management and control of the community personal property, whether acquired prior to or on or after January 1, 1975, with like absolute power of disposition, other than testamentary, as the spouse has of the separate estate of the spouse.
(b) A spouse may not make a gift of community personal property, or dispose of community personal property for less than fair and reasonable value, without the written consent of the other spouse. This subdivision does not apply to gifts mutually given by both spouses to third parties and to gifts given by one spouse to the other spouse.
(c) A spouse may not sell, convey, or encumber community personal property used as the family dwelling, or the furniture, furnishings, or fittings of the home, or the clothing or wearing apparel of the other spouse or minor children which is community personal property, without the written consent of the other spouse.
(d) Except as provided in subdivisions (b) and (c), and in Section
1102, a spouse who is operating or managing a business or an interest in a business that is all or substantially all community personal property has the primary management and control of the business or interest. Primary management and control means that the managing spouse may act alone in all transactions but shall give prior written notice to the other spouse of any sale, lease, exchange, encumbrance, or other disposition of all or substantially all of the personal property used in the
operation of the business (including personal property used for agricultural purposes), whether or not title to that property is held in the name of only one spouse. Written notice is not, however, required when prohibited by the law otherwise applicable to the transaction. Remedies for the failure by a managing spouse to give prior written notice as required by this subdivision are only as specified in Section 1101. A failure to give prior written notice shall not adversely affect the validity of a transaction nor of any interest transferred.
(e) Each spouse shall act with respect to the other spouse in the management
and control of the community assets and liabilities in accordance with the general rules governing fiduciary relationships
which control the actions of persons having relationships of personal confidence as specified in Section 721, until such
time as the assets and liabilities have been divided by the parties or by a court. This duty includes the obligation to make
full disclosure to the other spouse of all material facts and information regarding the existence, characterization, and
valuation of all assets in which the community has or may have an interest and debts for which the community is or may be
liable, and to provide equal access to all information, records, and books that pertain to the value and character of those
assets and debts, upon request.
1101. (a) A spouse has a claim against the other spouse for any breach of the fiduciary duty that results in impairment
to the claimant spouse's present undivided one-half interest in the community estate, including, but not limited to, a single
transaction or a pattern or series of transactions, which transaction or transactions have caused or will cause a detrimental
impact to the claimant spouse's undivided one-half interest in the community estate.
(b) A court may order an accounting of the property and obligations of the
parties to a marriage and may determine the rights of ownership in, the beneficial enjoyment of, or access to, community
property, and the classification of all property of the parties to a marriage.
(c) A court may order that the name of a spouse shall be added to community
property held in the name of the other spouse alone or that the title of community property held in some other title form
shall be reformed to reflect its community character, except with respect to any of the following:
(1) A partnership interest held by the other spouse as a general partner.
(2) An interest in a professional corporation or professional association.
(3) An asset of an unincorporated business if the other spouse is the only spouse involved in operating
and managing the business.
(4) Any other property, if the revision would adversely affect the rights of a third person.
(d) (1) Except as provided in paragraph (2), any action under subdivision
(a) shall be commenced within three years of the date a petitioning spouse had actual knowledge that the
transaction or event for which the remedy is being sought occurred.
(2) An action may be commenced under this section upon the death of a spouse or in conjunction with an action
for legal separation, dissolution of marriage, or nullity without regard to the time limitations set forth in paragraph
(1).
(3) The defense of laches may be raised in any action brought under this section.
(4) Except as to actions authorized by paragraph (2), remedies under subdivision (a) apply only to transactions
or events occurring on or after July 1, 1987.
(e) In any transaction affecting community property in which the consent of
both spouses is required, the court may, upon the motion of a spouse, dispense with the requirement of the other spouse's
consent if both of the following requirements are met:
(1) The proposed transaction is in the best interest of the community.
(2) Consent has been arbitrarily refused or cannot be obtained due to the physical incapacity, mental incapacity,
or prolonged absence of the non consenting spouse.
(f) Any action may be brought under this section without filing an action
for dissolution of marriage, legal separation, or nullity, or may be brought in conjunction with the action or upon the death
of a spouse.
(g) Remedies for breach of the fiduciary duty by one spouse, including those
set out in Sections 721 and 1100, shall include, but not be limited to, an award to the other spouse of 50 percent, or an
amount equal to 50 percent, of any asset undisclosed or transferred in breach of the fiduciary duty plus attorney's fees
and court costs. The value of the asset shall be determined to be its highest value at the date of the breach of the fiduciary
duty, the date of the sale or disposition of the asset, or the date of the award by the court.
(h) Remedies for the breach of the fiduciary duty by one spouse, as set forth
in Sections 721 and 1100, when the breach falls within the ambit of Section 3294 of the Civil Code shall include, but not
be limited to, an award to the other spouse of 100 percent, or an amount equal to 100 percent, of any asset undisclosed or
transferred in breach of the fiduciary duty.
1102. (a) Except as provided in Sections 761 and 1103, either spouse has the management and control of the community
real property, whether acquired prior to or on or after January 1, 1975, but both spouses, either personally or by a duly
authorized agent, must join in executing any instrument by which that community real property or any interest therein is
leased for a longer period than one year, or is sold, conveyed, or encumbered.
(b) Nothing in this section shall be construed to apply to a lease, mortgage,
conveyance, or transfer of real property or of any interest in real property between husband and wife.
(c) Notwithstanding subdivision (b): (1) The sole lease, contract, mortgage,
or deed of the husband, holding the record title to community real property, to a lessee, purchaser, or person who causes
encumbrance, in good faith without knowledge of the marriage relation, shall be presumed to be valid if executed prior to
January 1, 1975.
(2) The sole lease, contract, mortgage, or deed of either spouse, holding the record title to community
real property to a lessee, purchaser, or person who causes encumbrance, in good faith without knowledge of the marriage relation,
shall be presumed to be valid if executed on or after January 1, 1975.
(d) No action to avoid any instrument mentioned in this section, affecting
any property standing of record in the name of either spouse alone, executed by the spouse alone, shall be commenced after
the expiration of one year from the filing for record of that instrument in the recorder's office in the county in which
the land is situated.
(e) Nothing in this section precludes either spouse from encumbering his or
her interest in community real property, as provided in Section 2033, to pay reasonable attorney's fees in order to retain
or maintain legal counsel in a proceeding for dissolution of marriage, for nullity of marriage, or for legal separation of
the parties.
1103. (a) Where one or both of the spouses either has a conservator of the estate or lacks legal capacity
to manage and control community property, the procedure for management and control (which includes disposition) of the community
property is that prescribed in Part 6 (commencing with Section 3000) of Division 4 of the Probate Code.
(b) Where one or both spouses either has a conservator of the estate or lacks
legal capacity to give consent to a gift of community personal property or a disposition of community personal property without
a valuable consideration as required by Section 1100 or to a sale, conveyance, or encumbrance of community personal property
for which a consent is required by Section 1100, the procedure for that gift, disposition, sale, conveyance, or encumbrance
is that prescribed in Part 6 (commencing with Section 3000) of Division 4 of the Probate Code.
(c) Where
one or both spouses either has a conservator of the estate or lacks legal capacity to join in executing a lease, sale, conveyance,
or encumbrance of community real property or any interest therein as required by Section 1102, the procedure for that lease,
sale, conveyance, or encumbrance is that prescribed in Part 6 (commencing with Section 3000) of Division 4 of the Probate
Code.
Back to Top↑ |
|
California divorce statutes Section 2310-2313
:: Chapter 2. Grounds For Dissolution Or Legal Separation
2310. Dissolution of the marriage or legal separation of the parties may be based on either of the following
grounds as mandated by California divorce statutes, which shall be pleaded generally:
(a) Irreconcilable differences, which have caused the irremediable breakdown of the marriage.
(b) Incurable insanity.
2311. Irreconcilable differences are those grounds which are determined by the court to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved.
2312. A
marriage may be dissolved on the grounds of incurable insanity only upon proof, including competent medical or psychiatric
testimony, that the insane spouse was at the time the petition was filed, and remains, incurably insane.
2313. No dissolution of marriage granted on the ground of incurable insanity relieves a spouse from any
obligation imposed by law as a result of the marriage for the support of the spouse who is incurably insane, and the court
may make such order for support, or require a bond therefore, as the circumstances require.
Back to Top↑ |
|
California divorce statutes Section 3900-3902
:: Article 1. Support Of Minor Child
3900. Subject to this division, the father and mother of a minor child have an equal responsibility to support their child in the manner suitable to the child's circumstances.
3901. (a) The duty of support imposed by Section 3900 continues as to an unmarried child who has attained the age of 18 years, is a full-time high school student, and who is not self-supporting, until the time the child completes the 12th grade or attains the age of 19 years, whichever occurs first.
(b) Nothing in this section limits a parent's ability to agree to provide additional support or the court's power to inquire whether an agreement to provide additional support has been made.
3902. The court may direct that an allowance be made to the parent of a child for whom support may be ordered out of the child's property for the child's past or future support, on conditions that are proper, if the direction is for the child's benefit.
California divorce statutes Section 4050-4076 :: Article 2. Statewide Uniform Guideline (truncated)
4050. In adopting the statewide uniform guideline provided in this article, it is the intention of the Legislature to ensure that this state remains in compliance with federal regulations for child support guidelines.
4051. This article takes
effect on July 1, 1992.
4052. The court shall adhere to the statewide uniform guideline and may depart from the guideline only in the special circumstances set forth in this article.
4053. In implementing the statewide uniform guideline, the courts shall adhere to the following principles:
(a) A parent's first and principal obligation is to support his or her minor children according to the parent's circumstances and station in life.
(b) Both parents are mutually responsible for the support of their children.
(c) The guideline takes into account each parent's actual income and level of responsibility for the children.
(d) Each parent should pay for the support of the children according to his or her ability.
(e) The guideline seeks to place the interests of children as the state's top priority.
(f) Children should share in the standard of living of both parents. Child support may therefore appropriately improve the standard of living of the custodial household to improve the lives
of the children.
(g) Child support orders in cases in which both parents have high levels of responsibility for the children should reflect the increased costs of raising the children in two homes and should minimize significant disparities in the children's living standards in the two homes.
(h) The financial needs of the children should be met through private financial
resources as much as possible.
(i) It is presumed that a parent having primary physical responsibility for the children contributes a significant portion of available resources for the support of the children.
(j) The guideline seeks to encourage fair and efficient settlements of conflicts between parents and seeks to minimize the need for litigation.
(k) The guideline is intended to be presumptively correct in all cases, and only under special circumstances should child support orders fall below the child support mandated by the guideline formula.
(l) Child support orders must ensure that children actually receive fair, timely, and sufficient support reflecting the state's high standard of living and high costs of raising children compared to other states.
4054. (a) The Judicial Council shall periodically review the statewide uniform guideline to recommend to the Legislature appropriate revisions.
(b) The review shall include economic data on the cost of raising children and analysis of case data, gathered through sampling or other methods, on the actual application of the guideline after the guideline's operative date. The review shall also include an analysis of guidelines and studies from other states, and other research and studies available to or undertaken by the Judicial Council.
(c) Any recommendations for revisions to the guideline shall be made to ensure that the guideline results in appropriate child support orders, to limit deviations from the guideline, or otherwise to help ensure that the guideline is in compliance with federal law.
(d) The Judicial Council may also review and report on other matters, including, but not limited to, the following:
(1) The treatment of the income of a subsequent spouse or non marital partner.
(2) The treatment of children from prior or subsequent relationships.
(3) The application of the guideline in a case where a payer parent has extraordinarily low or extraordinarily high income, or where each parent has primary physical custody of one or more of the children of the marriage.
(4) The benefits and limitations of a uniform statewide spousal support guideline and the interrelationship of that guideline with the state child support guideline.
(5) Whether the use of gross or net income in the guideline is preferable.
(6) Whether the guideline affects child custody litigation or the efficiency of the judicial process.
(7) Whether the various assumptions used in computer software used by some courts to calculate child support comport with state law and should be made available to parties and counsel.
(e) The initial review by the Judicial Council shall be submitted to the Legislature and to the Department of Child Support Services on or before December 31, 1993, and subsequent reviews shall occur at least every four years thereafter unless federal law requires a different interval.
(f) In developing its recommendations, the Judicial Council shall consult with a broad cross-section of groups involved in child support issues, including, but not limited to, the following:
(1) Custodial and noncustodial parents.
(2) Representatives of established women's rights and fathers' rights groups.
(3) Representatives of established organizations that advocate for the economic well-being of children.
(4) Members of the judiciary, district attorney's offices, the Attorney General's office, and the Department of Child Support Services.
(5) Certified family law specialists.
(6) Academicians specializing in family law.
(7) Persons representing low-income parents.
(8) Persons representing recipients of assistance
under the CalWORKs program seeking child support services.
(g) In developing its recommendations, the Judicial Council shall seek public comment and shall be guided by the legislative intent that children share in the standard of living of both of
their parents.
4055. (a) The statewide uniform guideline for determining child support orders is as follows:
CS = K [HN --
(H%)(TN)].
(b) (1) The components of the formula are as follows:
(A) CS = child support amount.
(B) K = amount of both parents' income to be allocated for child support as set forth in paragraph (3).
(C) HN = high earner's net monthly disposable income.
(D) H% = approximate percentage of time that the high earner has or will have primary physical responsibility for the children compared to the other parent. In cases in which parents have different time-sharing arrangements for different children, H% equals the average of the approximate percentages of time the high earner parent spends with each child.
(E) TN = total net monthly disposable income of both parties.
(2) To compute net disposable income, see Section 4059.
(3) K (amount of both parents' income allocated for child support) equals one plus H% (if H% is less than
or equal to 50 percent) or two minus H% (if H% is greater than 50 percent) times the following fraction: Total Net Disposable
Income Per Month K -800 0.20 + TN/16,000 1-6,666 0.25 ,667-10,000 0.10 + 1,000/TN Over ,000 0.12 + 800/TN
(4) For more than one child, multiply CS by: 2 children 1.6 3 children 2 4 children 2.3 5 children 2.5 6
children 2.625 7 children 2.75 8 children 2.813 9 children 2.844 10 children 2.86
(5) If the amount calculated under the formula results in a positive number, the higher earner shall pay
that amount to the lower earner. If the amount calculated under the formula results in a negative number, the lower earner
shall pay the absolute value of that amount to the higher earner.
(6) In any default proceeding where proof is by affidavit pursuant to Section 2336, or in any proceeding
for child support in which a party fails to appear after being duly noticed, H% shall be set at zero in the formula if the
noncustodial parent is the higher earner or at 100 if the custodial parent is the higher earner, where there is no evidence
presented demonstrating the percentage of time that the noncustodial parent has primary physical responsibility for the children.
H% shall not be set as described above if the moving party in a default proceeding is the noncustodial parent or if the party
who fails to appear after being duly noticed is the custodial parent. A statement by the party who is not in default as to
the percentage of time that the noncustodial parent has primary physical responsibility for the children shall be deemed
sufficient evidence.
(7) In all cases in which the net disposable income per month of the obligor is less than one thousand dollars
(,000), there shall be a rebuttable presumption that the obligor is entitled to a low-income adjustment. The presumption
may be rebutted by evidence showing that the application of the low-income adjustment would be unjust and inappropriate in
the particular case. In determining whether the presumption is rebutted, the court shall consider the principles provided
in Section 4053, and the impact of the contemplated adjustment on the respective net incomes of the obligor and the obligee.
The low-income adjustment shall reduce the child support amount otherwise determined under this section by an amount that
is no greater than the amount calculated by multiplying the child support amount otherwise determined under this section
by a fraction, the numerator of which is 1,000 minus the obligor's net disposable income per month, and the denominator of
which is 1,000.
(8) Unless the court orders otherwise, the order for child support shall allocate the support amount so
that the amount of support for the youngest child is the amount of support for one child, and the amount for the next youngest
child is the difference between that amount and the amount for two children, with similar allocations for additional children.
However, this paragraph does not apply to cases in which there are different time-sharing arrangements for different children
or where the court determines that the allocation would be inappropriate in the particular case.
(c) If a court uses a computer to calculate the child support order, the computer
program shall not automatically default affirmatively or negatively on whether a low-income adjustment is to be applied.
If the low-income adjustment is applied, the computer program shall not provide the amount of the low-income adjustment.
Instead, the computer program shall ask the user whether or not to apply the low-income adjustment, and if answered affirmatively,
the computer program shall provide the range of the adjustment permitted by paragraph (7) of subdivision (b).
4058. (a) The annual gross income of each parent means income from whatever source derived, except as specified
in subdivision (c) and includes, but is not limited to, the following:
(1) Income such as commissions, salaries, royalties, wages, bonuses, rents, dividends, pensions, interest,
trust income, annuities, workers' compensation benefits, unemployment insurance benefits, disability insurance benefits,
social security benefits, and spousal support actually received from a person not a party to the proceeding to establish
a child support order under this article.
(2) Income from the proprietorship of a business, such as gross receipts from the business reduced by expenditures
required for the operation of the business.
(3) In the discretion of the court, employee benefits or self-employment benefits, taking into consideration
the benefit to the employee, any corresponding reduction in living expenses, and other relevant facts.
(b) The court may, in its discretion, consider the earning capacity of a parent
in lieu of the parent's income, consistent with the best interests of the children.
(c) Annual gross income does not include any income derived from child support
payments actually received, and income derived from any public assistance program, eligibility for which is based on a determination
of need. Child support received by a party for children from another relationship shall not be included as part of that party's
gross or net income.
4059. The annual net disposable income of each parent shall be computed by deducting from his or her annual
gross income the actual amounts attributable to the following items or other items permitted under this article:
(a) The state and federal income tax liability resulting from the parties'
taxable income. Federal and state income tax deductions shall bear an accurate relationship to the tax status of the parties
(that is, single, married, married filing separately, or head of household) and number of dependents. State and federal income
taxes shall be those actually payable (not necessarily current withholding) after considering appropriate filing status,
all available exclusions, deductions, and credits. Unless the parties stipulate otherwise, the tax effects of spousal support
shall not be considered in determining the net disposable income of the parties for determining child support, but shall
be considered in determining spousal support consistent with Chapter 3 (commencing with Section 4330) of Part 3.
(b) Deductions attributed to the employee's contribution or the self-employed
worker's contribution pursuant to the Federal Insurance Contributions Act (FICA), or an amount not to exceed that allowed
under FICA for persons not subject to FICA, provided that the deducted amount is used to secure retirement or disability
benefits for the parent.
(c) Deductions for mandatory union dues and retirement benefits, provided
that they are required as a condition of employment.
(d) Deductions for health insurance or health plan premiums for the parent and for any children the parent
has an obligation to support and deductions for state disability insurance premiums.
(e) Any child or spousal support actually being paid by the parent pursuant
to a court order, to or for the benefit of any person who is not a subject of the order to be established by the court. In
the absence of a court order, any child support actually being paid, not to exceed the amount established by the guideline,
for natural or adopted children of the parent not residing in that parent's home, who are not the subject of the order to
be established by the court, and of whom the parent has a duty of support. Unless the parent proves payment of the support,
no deduction shall be allowed under this subdivision.
(f) Job-related expenses,
if allowed by the court after consideration of whether the expenses are necessary, the benefit to the employee, and any other
relevant facts.
(g) A deduction for hardship, as defined by Sections 4070 to 4073, inclusive,
and applicable published appellate court decisions. The amount of the hardship shall not be deducted from the amount of child
support, but shall be deducted from the income of the party to whom it applies. In applying any hardship under paragraph
(2) of subdivision (a) of Section 4071, the court shall seek to provide equity between competing child support orders. The
Judicial Council shall develop a formula for calculating the maximum hardship deduction and shall submit it to the Legislature
for its consideration on or before July 1, 1995.
Back to Top↑ |
|
California divorce statutes Section 3100-3105
:: Chapter 5. Visitation Rights
3100. (a) In making an order pursuant to Chapter 4 (commencing with Section 3080), the court shall grant reasonable visitation rights to a parent unless it is shown that the visitation would be detrimental to the best interest of the child. In the discretion of the court, reasonable visitation rights may be granted to any other person having an interest in the welfare of the child.
(b) If a protective order, as defined in Section 6218 California divorce statutes,
has been directed to a parent, the court shall consider whether the best interest of the child requires that any visitation
by that parent shall be limited to situations in which a third person, specified by the court, is present, or whether visitation
shall be suspended or denied. The court shall include in its deliberations a consideration of the nature of the acts from
which the parent was enjoined and the period of time that has elapsed since that order. A parent may submit to the court
the name of a person that the parent deems suitable to be present during visitation.
(c) If visitation is ordered in a case in which domestic violence is alleged and an emergency protective order, protective order, or other restraining order has been issued, the visitation order shall specify the time, day, place, and manner of transfer of the child, so as to limit the child's exposure to potential domestic conflict or violence and to ensure the safety of all family members. If a criminal protective order has been issued pursuant to Section 136.2 of the Penal Code, the visitation order shall make reference to, and acknowledge the precedence of enforcement of, any appropriate criminal protective order.
(d) If the court finds a party is staying in a place designated as a shelter for victims of domestic violence or other confidential location, the court's order for time, day, place, and manner of transfer of the child for visitation shall be designed to prevent disclosure of the location of the shelter or other confidential location.
3101. (a) Notwithstanding any other provision of law, the court may grant reasonable visitation to a stepparent, if visitation by the stepparent is determined to be in the best interest of the minor child.
(b) If a protective order, as defined in Section 6218, has been directed to a stepparent to whom visitation may be granted pursuant to this section, the court shall consider whether the best interest of the child requires that any visitation by the stepparent be denied.
(c) Visitation rights may
not be ordered under this section that would conflict with a right of custody or visitation of a birth parent who is not a party to the proceeding.
(d) As used in this section:
(1) 'Birth parent means 'birth parent' as defined in Section 8512.
(2) "Stepparent" means a person who is a party to the marriage that is the subject of the proceeding, with respect to a minor child of the other party to the marriage.
3102. (a) If either parent of an unemancipated minor child is deceased, the children, siblings, parents, and grandparents of the deceased parent may be granted reasonable visitation
with the child during the child's minority upon a finding that the visitation would be in the best interest of the minor child.
(b) In granting visitation pursuant to this section to a person other than a grandparent of the child, the court shall consider the amount of personal contact between the person and the child before the application for the visitation order.
(c) This section does not apply if the child has been adopted by a person other than a stepparent or grandparent of the child. Any visitation rights granted pursuant to this section before the adoption of the child automatically terminate if the child is adopted by a person other than a stepparent or grandparent of the child.
3103. (a) Notwithstanding any other provision of law, in a proceeding described in Section 3021, the court may grant reasonable visitation to a grandparent of a minor child of a party to the proceeding if the court determines that visitation by the grandparent is in the best interest of
the child.
(b) If a protective order as defined in Section 6218 has been directed to the grandparent during the pendency of the proceeding, the court shall consider whether the best interest of the child requires that visitation by the grandparent be denied.
(c) The petitioner shall give notice of the petition to each of the parents of the child, any stepparent, and any person who has physical custody of the child, by certified mail, return receipt requested, postage prepaid, to the person's last known address, or to the attorneys of record of the parties to the proceeding.
(d) There is a rebuttable presumption affecting the burden of proof that the visitation of a grandparent is not in the best interest of a minor child if the child's parents agree that the grandparent should not be granted visitation rights.
(e) Visitation rights may not be ordered under this section if that would conflict with a right of custody or visitation of a birth parent who is not a party to the proceeding.
(f) Visitation ordered pursuant to this section shall not create a basis for or against a change of residence of the child, but shall be one of the factors for the court to consider in ordering a change of residence.
(g) When a court orders grandparental visitation pursuant to this section,
the court in its discretion may, based upon the relevant circumstances of the case: (1) Allocate the percentage of grandparental
visitation between the parents for purposes of the calculation of child support pursuant to the statewide uniform guideline
(Article 2 (commencing with Section 4050) of Chapter 2 of Part 2 of Division 9).
(2) Notwithstanding Sections 3930 and 3951, order a parent or grandparent to pay to the other, an amount
for the support of the child or grandchild. For purposes of this paragraph, "support" means costs related to visitation
such as any of the following:
(A) Transportation.
(B) Provision of basic expenses for the child or grandchild, such as medical expenses, day care costs, and
other necessities.
(h) As used in this section, "birth parent" means "birth parent" as
defined in Section 8512.
3104. (a) On petition to the court by a grandparent of a minor child, the court may grant reasonable visitation
rights to the grandparent if the court does both of the following:
(1) Finds that there is a preexisting relationship between the grandparent and the grandchild that has engendered
a bond such that visitation is in the best interest of the child.
(2) Balances the interest of the child in having visitation with the grandparent against the right of the
parents to exercise their parental authority.
(b) A petition for visitation
under this section may not be filed while the natural or adoptive parents are married, unless one or more of the following
circumstances exist:
(1) The parents are currently living separately and apart on a permanent or indefinite basis.
(2) One of the parents has been absent for more than one month without the other spouse knowing the whereabouts
of the absent spouse.
(3) One of the parents joins in the petition with the grandparents.
(4) The child is not residing with either parent.
(5) The child has been adopted by a stepparent. At any time that a change of circumstances occurs such that
none of these circumstances exist, the parent or parents may move the court to terminate grandparental visitation and the
court shall grant the termination.
(c) The petitioner shall give notice of the petition to each of the parents
of the child, any stepparent, and any person who has physical custody of the child, by personal service pursuant to Section
415.10 of the Code of Civil Procedure.
(d) If a protective order as defined
in Section 6218 has been directed to the grandparent during the pendency of the proceeding, the court shall consider whether
the best interest of the child requires that any visitation by that grandparent should be denied.
(e) There is a rebuttable presumption that the visitation of a grandparent
is not in the best interest of a minor child if the natural or adoptive parents agree that the grandparent should not be
granted visitation rights.
(f) There is a rebuttable presumption affecting the burden of proof that the
visitation of a grandparent is not in the best interest of a minor child if the parent who has been awarded sole legal and
physical custody of the child in another proceeding, or the parent with whom the child resides if there is currently no operative
custody order objects to visitation by the grandparent.
(g) Visitation rights may not be ordered under this section if that would
conflict with a right of custody or visitation of a birth parent who is not a party to the proceeding.
(h) Visitation ordered pursuant to this section shall not create a basis for
or against a change of residence of the child, but shall be one of the factors for the court to consider in ordering a change
of residence.
(i) When a court orders grandparental visitation pursuant to this section,
the court in its discretion may, based upon the relevant circumstances of the case:
(1) Allocate the percentage of grandparental visitation between the parents for purposes of the calculation
of child support pursuant to the statewide uniform guideline (Article 2 (commencing with Section 4050) of Chapter 2 of Part
2 of Division 9).
(2) Notwithstanding Sections 3930 and 3951, order a parent or grandparent to pay to the other, an amount
for the support of the child or grandchild. For purposes of this paragraph, "support" means costs related to visitation
such as any of the following:
(A) Transportation.
(B) Provision of basic expenses for the child or grandchild, such as medical expenses, day care costs, and
other necessities.
(j) As used in this section, "birth parent" means "birth parent" as
defined in Section 8512.
3105. (a) The Legislature finds and declares that a parent's fundamental right to provide for the care,
custody, companionship, and management of his or her children, while compelling, is not absolute. Children have a fundamental
right to maintain healthy, stable relationships with a person who has served in a significant, judicially approved parental
role.
(b) The court may grant reasonable visitation rights to a person who previously
served as the legal guardian of a child, if visitation is determined to be in the best interest of the minor child.
(c) In the absence of a court order granting or denying visitation between
a former legal guardian and his or her former minor ward, and if a dependency proceeding is not pending, a former legal guardian
may maintain an independent action for visitation with his or her former minor ward. If the child does not have at least
one living parent, visitation shall not be determined in a proceeding under the Family Code, but shall instead be determined
in a guardianship proceeding which may be initiated for that purpose.
Back to Top↑ |
|
California divorce statutes Section 1830-1842
:: Chapter 3. Proceedings For Conciliation
1830. (a) When a controversy exists between spouses, or when a controversy relating to child custody or visitation exists between parents regardless of their marital status, and the controversy may, unless a reconciliation is achieved, result in dissolution of the marriage, nullity of the marriage, or legal separation of the parties, or in the disruption of the household, and there is a minor child of the spouses or parents or of either of them whose welfare might be affected thereby, the family conciliation court has jurisdiction as provided in this part over the controversy and over the parties to the controversy and over all persons having any relation to the controversy.
(b) The family conciliation court also has jurisdiction over the controversy, whether or not there is a minor child of the parties or either of them, where the controversy involves domestic violence.
1831. Before the filing of a proceeding for determination of custody or visitation rights, for dissolution of marriage, for nullity of a voidable marriage, or for legal separation of the parties, either spouse or parent, or both, may file in the family conciliation court a petition invoking the jurisdiction of the court for the purpose of preserving the marriage by effecting a reconciliation between the parties, or for amicable settlement of the controversy between the spouses or parents, so as to avoid further litigation over the issue involved.
1832. The petition shall be captioned substantially as follows:
1833. The petition shall:
(a) Allege that a controversy exists between the spouses or parents and request the aid of the court to effect a reconciliation or an amicable settlement of the controversy.
(b) State the name and age of each minor child whose welfare may be affected by the controversy.
(c) State the name and address of the petitioner or the names and addresses of the petitioners.
(d) If the petition is presented by one spouse or parent only, the name of the other spouse or parent as a respondent, and state the address of that spouse or parent.
(e) Name as a respondent any other person who has any relation to the controversy, and state the address of the person if known to the petitioner.
(f) If the petition arises out of an instance of domestic violence, so state generally and without specific allegations as to the incident.
(g) State any other information the court by rule requires.
1834. (a) The clerk of the court shall provide, at the expense of the county, blank forms for petitions for filing pursuant to this part.
(b) The probation officers of the county and the attaches and employees of the family conciliation court shall assist
a person in the preparation and presentation of a petition under this part if the person requests assistance.
(c) All public officers in each county shall refer to the family conciliation court all petitions and complaints made to them in respect to controversies within the jurisdiction of the family conciliation court.
(d) The jurisdiction of the family conciliation court in respect to controversies arising out of an instance of domestic violence is not exclusive but is coextensive with any other remedies either civil or criminal in nature that may be available.
1835. No fee shall be charged by any officer for filing the petition.
1836. (a) The court shall fix a reasonable time and place for hearing on the petition. The court shall cause notice to be given to the respondents of the filing of the petition and of the time and place of the hearing that the court deems necessary.
(b) The court may, when it deems it necessary, issue a citation to a respondent requiring the respondent to appear at the time and place stated in the citation. The court may require the attendance of witnesses as in other civil cases.
1837. (a) Except as provided in subdivision
(b), for the purpose of conducting hearings pursuant to this part, the family conciliation court may be convened at any time and place within the county, and the hearing may be had in chambers or otherwise.
(b) The time and place for hearing shall not be different from
the time and place provided by law for the trial of civil actions if any party, before the hearing, objects to any different time or place. 1838.
(a) The hearing shall be conducted informally as a conference or a series of conferences to effect a
reconciliation of the spouses or an amicable adjustment or settlement of the issues in controversy.
(b) To facilitate and promote the purposes of this part, the court may, with
the consent of both parties to the proceeding, recommend or invoke the aid of medical or other specialists or scientific
experts, or of the pastor or director of any religious denomination to which the parties may belong. Aid under this subdivision
shall not be at the expense of the court or of the county unless the board of supervisors of the county specifically provides
and authorizes the aid.
1839. (a) At or after the hearing, the court may make orders in respect to the conduct of the spouses or
parents and the subject matter of the controversy that the court deems necessary to preserve the marriage or to implement
the reconciliation of the spouses. No such order shall be effective for more than 30 days from the hearing of the petition
unless the parties mutually consent to a continuation of the time the order remains effective.
(b) A reconciliation agreement between the parties may be reduced to writing
and, with the consent of the parties, a court order may be made requiring the parties to comply fully with the agreement.
(c) During the pendency of a proceeding under this part, the superior court
may order the husband or wife, or father or mother, as the case may be, to pay an amount necessary for the support and maintenance
of the wife or husband and for the support, maintenance, and education of the minor children, as the case may be. In determining
the amount, the superior court may take into consideration the recommendations of a financial referee if one is available
to the court. An order made pursuant to this subdivision shall not prejudice the rights of the parties or children with respect
to any subsequent order which may be made. An order made pursuant to this subdivision may be modified or terminated at any
time except as to an amount that accrued before the date of filing of the notice of motion or order to show cause to modify
or terminate.
1840. (a) During a period beginning upon the filing of the petition for conciliation and continuing until
30 days after the hearing of the petition for conciliation, neither spouse shall file a petition for dissolution of marriage,
for nullity of a voidable marriage, or for legal separation of the parties. (b) After
the expiration of the period under subdivision (a), if the controversy between the spouses, or the parents, has not been
terminated, either spouse may institute a proceeding for dissolution of marriage, for nullity of a voidable marriage, or
for legal separation of the parties, or a proceeding to determine custody or visitation of the minor child or children.
(c) The pendency of a proceeding for dissolution of marriage, for nullity
of marriage, or for legal separation of the parties, or a proceeding to determine custody or visitation of the minor child
or children, does not operate as a bar to the instituting of proceedings for conciliation under this part.
1841. If a petition for dissolution of marriage, for nullity of marriage, or for legal separation of the
parties is filed, the case may be transferred at any time during the pendency of the proceeding to the family conciliation
court for proceedings for reconciliation of the spouses or amicable settlement of issues in controversy in accordance with
this part if both of the following appear to the court:
(a) There is a minor child of the spouses, or of either of them, whose welfare
may be adversely affected by the dissolution of the marriage or the disruption of the household or a controversy involving
child custody.
(b) There is some reasonable possibility of a reconciliation being effected.
1842. (a) If an application is made to the family conciliation court for conciliation proceedings in respect
to a controversy between spouses, or a contested proceeding for dissolution of marriage, for nullity of a voidable marriage,
or for legal separation of the parties, but there is no minor child whose welfare may be affected by the results of the controversy,
and it appears to the court that reconciliation of the spouses or amicable adjustment of the controversy can probably be
achieved, and that the work of the court in cases involving children will not be seriously impeded by acceptance of the case,
the court may accept and dispose of the case in the same manner as similar cases involving the welfare of children are disposed
of.
(b) If the court accepts the case under subdivision (a), the court has the
same jurisdiction over the controversy and the parties to the controversy and those having a relation to the controversy
that it has under this part in similar cases involving the welfare of children.
Back to Top↑ |
|
|
California divorce statutes Section 3175-3188 :: Article
3. Mediation Proceedings
3175. If a matter is set for mediation pursuant to this chapter, the mediation shall be set before or concurrent with the setting of the matter for hearing.
3176. (a) Notice of mediation and of any hearing to be held pursuant to this chapter
shall be given to the following persons:
(1) Where mediation is required to settle a contested issue of custody or visitation,
to each party and to each party's counsel of record.
(2) Where a stepparent or grandparent seeks visitation rights, to the stepparent or grandparent seeking visitation rights, to each parent of the child, and to each parent's counsel of record.
(b) Notice shall be given by certified mail, return receipt requested, postage prepaid, to the last known address.
(c) Notice of mediation pursuant to Section 3188 shall state that all communications involving the mediator shall be kept confidential between the mediator and the disputing parties.
3177. Mediation proceedings pursuant to this chapter shall be held in private
and shall be confidential. All communications, verbal or written, from the parties to the mediator made in the proceeding are official information within the meaning of Section 1040 of the Evidence Code.
3178. An agreement reached by the parties as a result of mediation shall be limited as follows:
(a) Where mediation is required to settle a contested issue of custody
or visitation, the agreement shall be limited to the resolution of issues relating to parenting plans, custody, visitation, or a combination of these issues.
(b) Where a stepparent or grandparent seeks visitation rights, the agreement shall be limited to the resolution of issues relating to visitation.
3179. A custody or visitation agreement reached as a result of mediation
may be modified at any time at the discretion of the court, subject to Chapter 1 (commencing with Section 3020), Chapter 2 (commencing with Section 3040), Chapter 4 (commencing with Section 3080), and Chapter 5 (commencing with Section 3100).
3180. (a) In mediation proceedings pursuant to this chapter, the mediator has the duty to assess the needs and interests of the child involved in the controversy, and is entitled to interview the child where the mediator considers the interview appropriate or necessary.
(b) The mediator shall use his or her best efforts to effect a settlement of the custody or visitation dispute that is in the best interest of the child, as provided in Section 3011.
3181.
(a) In a proceeding in which mediation is required pursuant to this chapter, where there has been a history of domestic violence between the parties or where a protective order as defined in Section 6218 is in effect, at the request of the party alleging domestic violence in a written declaration under penalty of perjury or protected by the order, the mediator appointed pursuant to this chapter shall meet with the parties separately and at separate times.
(b) Any intake form that an agency charged with providing family court services requires the parties to complete before the commencement of mediation shall state that, if a party alleging domestic violence in a written declaration under penalty of perjury or a party protected by a protective order so requests, the mediator will meet with the parties separately and at separate times.
3182.
(a) The mediator has authority to exclude counsel from participation in the mediation proceedings pursuant to this chapter if, in the mediator's discretion, exclusion of counsel is appropriate or necessary.
(b) The mediator has authority to exclude a domestic violence support person from a mediation proceeding as provided in Section 6303.
3183. (a) Except as provided in Section 3188, the mediator may, consistent with local court rules, submit a recommendation to the court as to the custody of or visitation with the child.
(b) Where the parties have not reached agreement as a result of the mediation
proceedings, the mediator may recommend to the court that an investigation be conducted pursuant to Chapter 6 (commencing
with Section 3110) or that other services be offered to assist the parties to effect a resolution of the controversy before
a hearing on the issues.
(c) In appropriate cases, the mediator may recommend
that restraining orders be issued, pending determination of the controversy, to protect the well-being of the child involved
in the controversy.
3184. Except as provided in Section 3188, nothing in this chapter prohibits the mediator from recommending
to the court that counsel be appointed, pursuant to Chapter 10 (commencing with Section 3150), to represent the minor child.
In making this recommendation, the mediator shall inform the court of the reasons why it would be in the best interest of
the minor child to have counsel appointed.
3185. (a) If issues that may be resolved by agreement pursuant to Section 3178 are not resolved by an agreement
of all the parties who participate in mediation, the mediator shall inform the court in writing and the court shall set the
matter for hearing on the unresolved issues.
(b) Where a stepparent or grandparent requests visitation, each natural or
adoptive parent and the stepparent or grandparent shall be given an opportunity to appear and be heard on the issue of visitation.
3186. (a) An agreement reached by the parties as a result of mediation shall be reported to counsel for
the parties by the mediator on the day set for mediation or as soon thereafter as practical, but before the agreement is
reported to the court.
(b) An agreement may not be confirmed or otherwise incorporated in an order
unless each party, in person or by counsel of record, has affirmed and assented to the agreement in open court or by written
stipulation.
(c) An agreement may be confirmed or otherwise incorporated in an order if
a party fails to appear at a noticed hearing on the issue involved in the agreement.
3188. (a) Any court selected by the Judicial Council under subdivision (c) may voluntarily adopt a confidential
mediation program that provides for all of the following:
(1) The mediator may not make a recommendation as to custody or visitation to anyone other than the disputing
parties, except as otherwise provided in this section.
(2) If total or partial agreement is reached in mediation, the mediator may report this fact to the court.
If both parties consent in writing, where there is a partial agreement, the mediator may report to the court a description
of the issues still in dispute, without specific reference to either party.
(3) In making the recommendation described in Section 3184, the mediator may not inform the court of the
reasons why it would be in the best interest of the minor child to have counsel appointed.
(4) If the parties have not reached agreement as a result of the initial mediation, this section does not
prohibit the court from requiring subsequent mediation that may result in a recommendation as to custody or visitation with
the child if the subsequent mediation is conducted by a different mediator with no prior involvement with the case or knowledge
of any communications, as defined in Section 1040 of the Evidence Code, with respect to the initial mediation. The court,
however, shall inform the parties that the mediator will make a recommendation to the court regarding custody or visitation
in the event that the parties cannot reach agreement on these issues.
(5) If an initial screening or intake process indicates that the case involves serious safety risks to the
child, such as domestic violence, sexual abuse, or serious substance abuse, the court may provide an initial emergency assessment
service that includes a recommendation to the court concerning temporary custody or visitation orders in order to expeditiously
address those safety issues.
(b) This section shall become operative upon the appropriation of funds in
the annual Budget Act sufficient to implement this section.
(c) This section shall apply only in four or more counties selected by the
Judicial Council that currently allow a mediator to make custody recommendations to the court and have more than 1,000 family
law case filings per year. The Judicial Council may also make this section applicable to additional counties that have fewer
than 1,000 family law case filings per year.
Back to Top↑ |
|
California divorce statutes Section 2320-2322 :: Chapter
3. Residence Requirements
2320. A judgment of dissolution of marriage may not be entered unless one of the parties to the marriage has been a resident of this state for six months and of the county in which the proceeding is filed for three months next preceding the filing of the petition.
2321. (a) In a proceeding for legal separation of the parties in which neither party, at the time the
proceeding was commenced, has complied with the residence requirements of Section 2320, either party may, upon complying
with the residence requirements, amend the party's petition or responsive pleading in the proceeding to request that a judgment
of dissolution of the marriage be entered. The date of the filing of the amended petition or pleading shall be deemed to
be the date of commencement of the proceeding for the dissolution of the marriage for the purposes only of the residence
requirements of Section
2320. (b) If the other party has appeared in the proceeding, notice of the amendment shall be given
to the other party in the manner provided by rules adopted by the Judicial Council. If no appearance has been made by the
other party in the proceeding, notice of the amendment may be given to the other party by mail to the last known address
of the other party, or by personal service, if the intent of the party to so amend upon satisfaction of the residence requirements
of Section 2320 is set forth in the initial petition or pleading in the manner provided by rules adopted by the Judicial
Council.
2322. For the purpose of a proceeding for dissolution of marriage, the husband and wife each may have
a separate domicile or residence depending upon proof of the fact and not upon legal presumptions.
Back to Top↑ |
|
California divorce statutes Section 7610-7614 :: Chapter
2. Establishing Parent And Child Relationship.
7610. The parent and child relationship may be established as follows:
(a) Between a child and the natural mother, it may be established by proof of her having given birth to the child, or under this part.
(b) Between a child and the natural father, it may be established under this part.
(c) Between a child and an adoptive parent, it may be established by proof of adoption.
7611. A man is presumed to be the natural father of a child if he meets the conditions provided in Chapter 1 (commencing with Section 7540) or Chapter 3 (commencing with Section 7570) of Part 2 or in any of the following subdivisions:
(a) He and the child's natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a judgment of separation is entered by a court.
(b) Before the child's birth, he and the child's natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true:
(1) If the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage, or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce.
(2) If the attempted marriage is invalid without a court order, the child is born within 300 days
after the termination of cohabitation.
(c) After the child's birth, he and the child's natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true:
(1) With his consent, he is named as the child's father on the child's birth certificate.
(2) He is obligated to support the child under a written voluntary promise or by court order.
(d) He receives the child into his home and openly holds out the child as his natural child.
(e) If the child was born and resides in a nation with which the United States engages in an Orderly Departure Program or successor program, he acknowledges that he is the child's father in a declaration under penalty of perjury, as specified in Section 2015.5 of the Code of Civil
Procedure. This subdivision shall remain in effect only until January 1, 1997, and on that date shall become inoperative.
(f) The child is in utero after the death of the decedent and the conditions set forth in Section 249.5 of the Probate Code are satisfied.
7611.5. Where Section 7611 does not apply, a man shall not be presumed to be the natural father of a child
if either of the following is true: (a) The child was conceived as a result
of an act in violation of Section 261 of the Penal Code and the father was convicted of that violation.
(b) The child was conceived as a result of an act in violation of Section
261.5 of the Penal Code, the father was convicted of that violation, and the mother was under the age of 15 years and the
father was 21 years of age or older at the time of conception.
7612. (a) Except as provided in Chapter 1 (commencing with Section 7540) and Chapter 3 (commencing with
Section 7570) of Part 2 or in Section 20102, a presumption under Section 7611 is a rebuttable presumption affecting the burden
of proof and may be rebutted in an appropriate action only by clear and convincing evidence.
(b) If two or more presumptions arise under Section 7610 or 7611 that conflict
with each other, or if a presumption under Section 7611 conflicts with a claim pursuant to Section 7610, the presumption
which on the facts is founded on the weightier considerations of policy and logic controls.
(c) The presumption under Section 7611 is rebutted by a judgment establishing
paternity of the child by another man.
7613. (a) If, under the supervision of a licensed physician and surgeon and with the consent of her husband,
a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were
the natural father of a child thereby conceived. The husband's consent must be in writing and signed by him and his wife.
The physician and surgeon shall certify their signatures and the date of the insemination, and retain the husband's consent
as part of the medical record, where it shall be kept confidential and in a sealed file. However, the physician and surgeon's
failure to do so does not affect the father and child relationship. All papers and records pertaining to the insemination,
whether part of the permanent record of a court or of a file held by the supervising physician and surgeon or elsewhere,
are subject to inspection only upon an order of the court for good cause shown.
(b) 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.
7614. (a) A promise in writing to furnish support for a child, growing out of a presumed or alleged father
and child relationship, does not require consideration and, subject to Section 7632, is enforceable according to its terms.
(b) In the best interest of the child or the mother, the court may, and upon
the promisor's request shall, order the promise to be kept in confidence and designate a person or agency to receive and
disburse on behalf of the child all amounts paid in performance of the promise.
Back to Top↑ |
The California divorce laws that
appear here may not include all provisions of Family Law. Some editing
has occurred. You should consult the code or a California divorce attorney.
| |
