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Posted on Nov 16 on 2016

A woman is 35 years old.  She is unmarried.  She wants to have a child.  She realizes that her childbearing years are coming to an end relatively soon.  The proverbial “clock” is ticking away.  She goes to a sperm bank and looks at the profiles.  She doesn’t like the idea of picking the sperm of a stranger, so instead she decides to approach a male friend of hers and ask him to provide sperm.

Her male friend has no children of his own and likes the idea.  He is interested in helping her.  He wants to know what his involvement will be.  Will they share the child and raise the child together?  Will the child spend nights at each of their homes?  Can they be like divorced parents sharing custody?

Her response to this is “not exactly”.  When asked what that means, she explains to him that he will help her achieve the pregnancy but he will not have legal responsibility to the child.  He will be the child’s “uncle” and he can take the child out once in a while on outings or to play, he can babysit, and he can celebrate some holidays with the child, but in the end she is the mother and the child’s only parent. She tells him that this is a good arrangement for him because he never has to pay child support.  He gets to see his child grow up and participate in that in a limited way, but he is also untethered and can do whatever he wants.

He thinks about it and says it sounds good to him.  But what one thinks before the child is here, and what one feels afterward are often different.  After a year of playing “uncle”, this new father wants to be the legal father.  If he has been involved enough with the child, he may be able to establish legal parentage and the new mother loses the control she had thought she would always have.  

There’s a simple principle at play here. It’s the old adage: “You can’t have your cake and eat it too”.  If you are a mother contemplating solo parenthood, and you are certain you don’t wish to end up in a joint-custodial arrangement, it is not realistic to expect that your friend is going to abide by your wishes long term.  Using an anonymous sperm donor solves this problem.  And if you are the friend who thinks it might be cute to have a child that you don’t really have to take full responsibility for, that’s also not very realistic.  Once your flesh and blood is in your hands, it’s not so easy to say “he’s not mine”.  And if you do start taking that active role, don’t be shocked when you are expected to pay child support, or some portion of the child’s expenses. It is expensive to raise kids.  

These are issues that really need serious consideration and should not be decided based upon fantasy scenarios that sound like great ideas but which are both unrealistic given that they involve human emotions and have legal consequences.  These arrangements have to be thought out in advance, probably discussed with a mental health professional and which certainly need the involvement of an attorney to draft an agreement that ensures that whatever the expectations are going into the arrangement, will also be the rules for moving forward once the baby has arrived. 

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Posted on Oct 13 on 2016
  1. How is it determined?  Child support in California is based on a statewide guideline.  The formula by which it is determined is rather complex.  As a result, it is usually calculated by attorneys using one of a few computer programs licensed by companies that provide legal research software. The calculation is based upon the number of children, the income of each of the parents, the timeshare that each parent has custody, their tax filing status, and their tax-deductible expenses;
  2. Is there a dollar limit on the amount of support that one can be ordered to pay? Unlike some states, California does not provide for a cap in the amount of support to be ordered. The guideline calculation is the presumptively legal calculation in most cases.  There are some very limited instances when the court can deviate from this, discussed below;
  3. What happens if the calculation generates an amount that is clearly higher than what is necessary to raise a child?  The guideline calculation may or may not generate such a result. What is necessary to raise a child varies on a case-by-case basis. The law provides that a child is entitled to have a lifestyle commensurate with that of his or her parents.  For this reason, a child support calculation that improves the lifestyle of the lower income parent is often upheld by the court.  In those instances when the child support amount is so excessive that it bears no reasonable relationship to either the lifestyle of the parents, or the amount of support required to raise a child commensurate with that lifestyle, the court may deviate from the guideline.
  4. What if the child support paid ends up being enough to support both the child and the other parent?  This does happen in certain instances.  Given that the law allows the child to be raised in a lifestyle consistent with that which the higher earning parent can provide, there have been cases upheld by higher courts where the receiving parent moved up in terms of housing and other expenses because of the amount of child support paid. In cases with a parent who earns very significant income, this is not an uncommon result.
  5. What income is included in the calculation? Earned income from employment, recurring interest or investment income, and cash flow from businesses can be included.  The California Family Code provides that income from all sources is to be considered.  That does not mean that the calculation is based on the income reported in a tax return only. Many times people run personal expenses through a business as a business deduction.  In those instances, the amount of expense which is for the benefit of the business owner, and not a true business expenses is added back to income for the purposes of calculating support.  
  6. What if the parent receiving the support does not use it for the child?  Unfortunately, the answer to his commonly asked question is there isn’t much to be done about that.  The law does not require that the support be used for any specific purpose, and there are no requirements that the recipient account for the use of the money that is received.  The law presumes that certain general living expenses (mortgage or rent, utilities, groceries) incurred by a parent are incurred for the benefit of the child, as well.
  7. Does the person receiving support have to pay all of the child’s expenses? No. Support is to provide for basic living expenses.  It does not include the payment of things such as school tuition, non-covered medical expenses, or extracurricular activities.  Those items are usually split between the parents and for the parent paying child support, she will end up paying the monthly support amount and a portion of these expenses in addition thereto.
  8. Is the amount of support the same for each child where there are multiple children in a family? No. The formula used to calculate support apportions it between children, and, oddly, gives the higher amount of support to the youngest child.  For some reason, the legislature has seen fit to make the determination that a younger child is in greater need of support than an older child. This makes no logical sense whatsoever, especially when you realize that the financial needs of a healthy infant or toddler are generally a fraction of those of a teenager.
  9. Does child support go through college graduation? Not in California.  Support ends when the child reaches the age of 18 and graduates from high school provided that they are living with a custodial parent. If they have not graduated at age 18, and are still enrolled in high school full-time, then support continues until they graduate, or age 19, whichever occurs first.  
  10. What if financial circumstances change after it has been determined?  Child support is always subject to modification if there is a change in one’s financial circumstances. It can also be subject to modification if there are changes to the custody arrangement which result in the child spending more or less time with the parent receiving support.

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Posted on Sep 13 on 2016

You may recall the landmark Court of Appeal published decision obtained by our firm in 2014 known as Jason P. v. Danielle S. 226 Cal. App. 4th 167.  That case created a change to decades old parentage statutes which barred a biological father who provided sperm to a physician for insemination into his unmarried partner from legal parentage status even where the father had a father-son relationship with his child.  The decision allowed the biological father to obtain legal status as the child’s father where he could meet certain legal criteria.  Prior to that time, statutes and decisional law precluded the biological father from obtaining such status, distinguishing them from fathers who were married to the child’s mother at the time of conception.

We are pleased to announce that another of our clients has now obtained legal parentage status by application of the principles set forth in Jason P. In a recent memorandum of decision, the court found that our client, a father who had a relationship with his son who was conceived through fertility procedures with a female friend, met the criteria set forth in the Family Code as modified by Jason P. The court declared that he would also be the legal father of his little boy over the mother’s objections. In this case, the father had been a part of the child’s life from birth until the child’s mother attempted to sever the relationship at age two, arguing that he was a “sperm donor” under the Family Code and therefore barred from ever obtaining legal parentage of his son.  After several months of estrangement enforced by the mother, the court made temporary custody and visitation orders pending trial which took place over the summer.  It is unfortunate that the law allows one parent to take such a position, causing significant emotional distress to the child and the other parent, not to mention the expense of having to mount a legal battle in order to obtain formal parentage rights that a married father would never have to incur.  Thanks to the Jason P. decision, and our legal work, the child at issue in these proceedings will not have to go through life without his father.

And it seems that the reasoning behind Jason P. continues to have impact outside of California.  Jason P. stands for the proposition that where the biological father can establish that he meets the criteria of parentage applicable to other men, and has a familial relationship with the child and mother, he should not be precluded from obtaining parentage status, which would be detrimental to the child.  The bar to parentage that existed prior to this decision arose out of the Uniform Parentage Act, a set of statutes enacted in varying forms in most states of the United States.  Just last month, a Court of Appeal in New York State overturned a decades old law barring a non-adoptive, non-biological caretaker from obtaining parentage status. In Brooke S.B. v. Elizabeth A. C. C., the Court of Appeal ruled that a woman who had raised a child with her lesbian partner, but who had been cut off from the child after the couple broke-up and prior to the enactment of same-sex marriage laws in New York, had a right to prove parentage based on her relationship with the child.  Recognizing the importance of making these decisions from the child’s point of view, courts around the country are recognizing that children establish relationships with parents regardless of the structure in which the family is created.  This trend, recognized in Jason P., is one that will benefit children in the future given the drastic changes that have taken place in the structure of families in the recent past and we welcome it.  

CATEGORIZED IN:News

Posted on Aug 10 on 2016

In 1972, George Carlin performed a monologue about the “Seven Words You Can Never Say on Television”.   Those words were considered offensive language, and the monologue itself gave rise to a lawsuit that made its way to the United Stated Supreme Court after a complaint was lodged by a member of a conservative organization known as “Morality in Media”.  The complaint was that the radio broadcast, heard by a 15 year old boy who was driving with his father, was inappropriate for the time of day.  The Supreme Court was ultimately called upon to rule as to whether an order issued by the Federal Communications Commission against the broadcaster was a violation of the First or Fifth Amendments to the United States Constitution.  The Supreme Court decided that it was not.  And at one point, George Carlin himself was arrested for disturbing the peace when he performed the monologue at a festival in Wisconsin.  Apparently George isn’t the only one to suffer consequences from the use of such language.

The California Family Code provides that if a court makes a finding that a party has “perpetrated domestic violence” against the other party seeking custody of a child, there is a rebuttable presumption that awarding joint or sole legal or physical custody is detrimental to the best interests of the child.  While most of us think of “domestic violence” as involving physical contact or abuse, the Family Code provides a significantly broader definition.  That definition includes engaging in behavior involving harassing conduct, or disturbing the peace of another.

Which is exactly how the “Seven Dirty Words” can lead to a restriction on someone’s custodial rights.  While few would argue that the use of colloquial English in the present era is significantly less formal than it may have been in the early 1970s, the words themselves continue to have significant power in some contexts.  In this day of electronic communications it seems that emails and text messages are showing up in family court proceedings with unrelenting abandon.  While in the past it would require the testimony of witnesses to create a record in court as to what one party said to the other, that is no longer the case. And it appears that in many a custody dispute, these electronic communications are saved by one of the parties and placed into the record with a claim that the communications, frequently containing some composition of the “Seven Dirty Words”, were disturbing of that party’s peace.   Whether the language actually did have that effect, whether the recipient of the language used the same words in conversing with the sender or with others, seems in this day and age to be of little concern in our politically-correct family court environment.  The use of the words themselves, particularly in the context of being descriptive of the parent to whom they are sent, can and do give rise to not only the issuance of restraining orders, but also to restrictions placed on the custodial rights of the sender.  And, at least one California appellate court has ruled that the restrictions put in place by such statutes are within the scope of a compelling state interest and not a violation of one’s constitutional rights to free speech.

In a 2004 NPR Interview with Terry Gross, George Carlin himself said that these “Seven Dirty Words” by themselves have no power, and that we give them power “by refusing to be free and easy with them”.  To quote George, “It’s the thrust of the sentence that makes them either good or bad.”  This also seems to hold true in the context of a custody dispute. But when the words are reproduced in a court session, they suddenly seem to have even more power.  It should not be automatic that the use of this language in the context of communications with a parent gives rise to an almost automatic restriction on that parent’s rights to interact with her or his own children.  This is by no means a statement intended to condone domestic violence in any form.  But it is to say that we should call into question whether the use of such language justifiably results in curtailment of some parent-child relationships, or whether courts are giving the words themselves too much power.  

CATEGORIZED IN:News

Posted on Jul 6 on 2016

Couples A and B each have two children.  Couple A has been married for ten years.  Couple B has also been married for ten years.  One of the partners in each of these couples earns the same amount of money.  The other partner in each couple also earn the same amount of money, which is about one-fourth of that amount.  The higher earning partner in each of these couples is a very controlling person.  That partner decides how much money is spent by the family and how much is saved. These include such decisions as whether the children can attend certain extracurricular activities or camp, how much the other partner can spend on clothes and personal effects and what is done with savings.  If the children want something that the higher earner won’t provide, they either don’t get it or the lower earning spouse uses what the person has available to try and provide it.

Couple A separates, couple B does not.  When Couple A separate, the higher-earning controlling spouse loses a significant amount of that control.  The similarly-situated spouse in Couple B never loses that control.

Couple A ends up in the family court system.  The court now tells the higher earning partner how much money must be provided to the other partner each month. The court tells that partner what expenses must be paid for the children.  In addition, the court also tells both partners who will have the children when.

Over the ensuing 5 years both couples have disagreements over their children.  They cannot agree on what school to send the children to, or whether one of the children has special needs which must be provided for.  The court tells Couple A where the children will attend school, and what the higher-earning parent in Couple A has to pay for in terms of those needs.  In Couple B, the controlling spouse decides where the children attend school and what will provided to the special needs child.  For Couple A., the lower earner gets a set amount of money each month for an indefinite time period for the next 7 years. For Couple B, the lower earning spouse only gets what the higher earner is willing to provide which isn’t much.  The high earner in Couple B spends most of his earnings on himself.

Which couple has the better outcome? One could argue that lower earner from Couple A ended up with the better deal. That individual now has a monthly allowance not previously available, and is not subject to the control of the other spouse.   On the other hand, no one is interfering in Couple B’s domestic life. While the weaker partner may not be getting the same deal as the weaker partner in Couple A, does that really matter?  And with regard to the couple that did get divorced, is it appropriate that their lives are regulated in this way? Are we discriminating against divorcing partners by regulating aspects of their lives that are not regulated for anyone else? Are fewer people marrying these days because they do not want to end up subject to such regulation?

There are no right answers to these questions.  They are set forth for the purposes of making us think.  The real question is this: if we are willing not to interfere in the daily lives of those who end up staying in a marriage–happily or not, should we be interfering in the lives of those that choose to divorce? Or, should our laws be reformed to provide actual protection when it is needed such as in cases of domestic violence or to prevent children from going without financial support, but not go beyond that. Why is it socially acceptable for the children in Couple B’s family to be denied what they need because the parents stayed together, while the children in Couple A’s family get what they need because the parents got divorced?  And conversely why is it acceptable for the higher earner in Couple B to keep the bulk of what has been earned, while we are requiring the higher earner in Couple A to pay a percentage of income to the other spouse?

CATEGORIZED IN:News