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Posted on Mar 11 on 2014

After the recent 6th District Court of Appeal Case, Gonzalez v. Santa Clara County Department of Social Services, one might ask what the state of the law is as it stands today in California. The issue raised is not an issue of morals or the impact of spanking on a child, but the question of the legality of spanking in California.

The Gonzalez case avoided determining whether a mother acted reasonably and legally when she struck her daughter with a wooden spoon, with enough force to leave bruises. Veronica Gonzalez’s 12 year old daughter had stopped doing her schoolwork and had lied to her parents numerous times about her friends and school. As a result, Veronica Gonzalez and her husband decided that spanking was the only punishment that would change their daughter’s behavior. Veronica’s husband had been the primary one to impose the punishment, but on the evening in which he was not present, Veronica decided to swat her daughter with a wooden spoon. School officials later learned of the incident after Veronica’s daughter told her friends what had happened.

The court has said that Veronica Gonzalez should not be labeled a child abuser, ruling that the social workers and judges must consider a parent’s right to impose “reasonable discipline” on a child.

California law permits spanking.

The California Penal Code punishes the act of physically injuring or imposing cruel physical punishment on a child, more commonly referred to as child abuse. However, in California, parents are allowed to use “reasonable and age-appropriate spanking to the buttocks” as long as there is no serious physical injury to the child.

The court has held that parents have the legal right to inflict “reasonable” corporal punishment to discipline one’s child. However, the court has also warned, “corporal punishment is unjustifiable when it is not warranted by the circumstances, i.e., not necessary, or when the punishment, although warranted, was excessive.”

If corporal punishment crosses the line, the parent inflicting the corporal punishment is subject to being restrained under the Domestic Violence Prevention Act. Significant implications in a custody proceeding may result if this occurs. Clearly, if a restraining order is issued as a result of unlawful corporal punishment, the court must consider this history of abuse when making a custody determination. The more problematic question is whether or not the court can consider the appropriate use of corporal punishment in making a custody determination. Parents must decide if the use of lawful corporal punishment is a necessary part of parenting his or her child, and worth the risk that it might be interpreted as unjustifiable. Physical punishment can easily escalate and cross the line from “reasonable” to excessive. As litigation arises over this issue, a parent must weigh the consequences of exercising his or her right against the cost of pursuing the issue in court.

– Sarah Rosenblatt

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Posted on Mar 6 on 2014

Fred will be sharing his expertise on creating legal parentage agreements at the upcoming Fertility Planit Conference on Friday April 4th at 5:00 PM at UCLA. While handling adoption proceedings for clients, Fred was astounded by the difficulty of the process and began working in the area of surrogacy and reproductive technology law, which provided more assurance of results for his clients. He founded Future Family Starter to offer medical, legal, and surrogacy services all in one place. It’s his mission to make this complex, emotional and expensive process go smoothly and successfully for prospective parents. For more information please click the link below.
Fred Silberberg Fertility Planit 2014

CATEGORIZED IN:News

Posted on Mar 6 on 2014

A year ago, actor Jason Patric’s son was taken from him due to a legal loophole denying him parentage and painting him as nothing more than a “sperm donor.” Now he’s fighting for custody of his own son, as well as for fathers in similar positions who can’t fight for themselves.

After years of trying and with no success, Patric and former girlfriend finally conceived their first child through in-vitro fertilization. Although the couple never married, they raised their son together for a number of years, until the child’s mother decided to oust Patric from the picture. She was legally able to do so, thanks to a California State law claiming that a man whose sperm is used by a fertility clinic must have a signed agreement in writing clearly stating plans to co-parent, otherwise, he does not have parental rights.

READ THE WHOLE ARTICLE »

CATEGORIZED IN:News

Posted on Feb 11 on 2014

Alimony payments are often a central point of contention in any divorce case. While it’s easy to see how someone who’s recently exited a marriage agreement could benefit from some period of steady support to get them back on their feet, alimony can just as easily turn into a windfall for the recipient, allowing them to live a comfortable lifestyle with no incentive to repurpose their lives and support themselves financially.

In the State of California, if a marriage ends after 10 years, the alimony obligation remains in place until the recipient dies or is remarried. A 10 year marriage can result in a lifetime of payment, essentially creating a form of “private welfare,” penalizing one party by forcing them to pay support for a spouse for the duration of their life.

Granted, just like the public welfare system, there are cases where the payee may need this money to turn their life around. The difference is the public welfare system has checks and balances in place to prevent abuse; putting the burden on the payee to prove that they can’t support themselves. But if a party in an alimony case wishes to modify or cease their payment, the burden of proof is on the payer, not the payee. As a result, these cases are hard fought, often requiring multiple hearings and court appearances with little guarantee of success.

Contrast this now with a state like Texas. The original intent of support in that state is carried forward into the modern day. If you want support, you get it for a limited period of time and up to a limited amount. After that, you are on your own.

While Texas is a community property state, it seems to recognize the fact that anything more than a short term rehabilitative support order is a windfall. After all, why should someone continue to live a higher level lifestyle, years after they are divorced, simply because their former spouse is able to make money? By the same token, why should someone be forced to work at level that they would not otherwise work, simply to provide support for their former partner who is not inclined to support himself or herself.

It is time for us to reconsider the spousal support structure in California. The spirit of the system is sound; if someone is dependent on the spouse during the marriage, they should receive some assistance while they restructure their lives and reenter the workforce. However, there is nothing equitable or appropriate about forcing one party to provide a recurring windfall long after a marriage has ended. California’s alimony system is broken, and the time for reform is now.

CATEGORIZED IN:News

Posted on Feb 11 on 2014

I have been a long standing advocate of the proposition that upon divorce, the law should provide for equal custody between parents unless one parent declines to exercise that custodial time. If this were the case, we’d see a lot less resources being expended on custody battles because one parent is attempting to keep the children away from the other, with no legitimate reason. I have written about this topic in the past, including an article that appeared in the June 29, 2012 Daily Journal. I am pleased to see that the concept is finally catching hold in various states which seek to enact laws providing for shared parenting upon separation or divorce. Just this past January 29, USA Today reported on this movement. I thought you might find it of interest. [USA Today Article]

CATEGORIZED IN:News