Monthly Archives: September 2014

Surrogacy

September 23rd, 2014

Surrogacy is defined as “the practice by which a woman (called a surrogate mother) becomes pregnant and gives birth to a baby in order to give it to someone who cannot have children” (Merriam-Webster).  Laws vary state to state as noted in this recent New York Times article.

In California, surrogacy is lawful (and regulated).  The Family Code speaks about it here.  In short, the parties enter into a contract whereby a woman will become pregnant via in vitro fertilization and birth a child that is not intended to be her own (nor is she genetically related to the child).  She may enter into the contract with a married couple, those in a domestic partnership, or a single person.  The contract needs to clearly spell out the terms including, but not limited to: the persons from which the egg and sperm came (unless anonymously donated) and the identity of the intended parent(s).

Be sure to speak to an experienced reproductive rights attorney before signing a surrogacy contract.

 

 

Constitution Day – 2014

September 17th, 2014

Family law is usually considered a state law issue – removed from federal and constitutional issues.  However, gay marriage and even grandparent visitation rights are two family law issues impacted by the U.S. Constitution.  Is there a constitutional right to gay marriage?  Can a parent deny visitation to a grandparent?  The Constitution has an answer.

This blog previously addressed constitutional/family law issues here.  Grandparent rights and the right to raise your child are discussed in Troxel v. Granville (2000) 530 U.S. 57 (“liberty interest [as defined in the 14th Amendment] at issue in this case–the interest of parents in the care, custody, and control of their children–is perhaps the oldest of the fundamental liberty interests recognized by this Court.”

Happy Constitution Day!

 

Domestic Violence

September 17th, 2014

Domestic violence has reared its ugly head in the news recently.  There are resources for victims of domestic violence.  For resources in Alameda County, click here; Contra Costa County, click here.  The legal system also addresses domestic violence in the family law court system.

Victims can request Domestic Violence Restraining Orders (“DVRO”) which can include stay-away orders, custody/visitation orders (if children involved), and support orders.  A person can request a DVRO in conjunction with a family law case (dissolution or paternity), but a previously existing case is not required.

If domestic violence is an issue in your case, be sure to talk to an experienced family law attorney who can help you navigate the legal system and obtain the help and legal protections you need.

Fewer Marriages Do Not Necessarily Result in Fewer Children

September 16th, 2014

The New York Times recently published an opinion piece entitled “Beyond Marriage“.  The author discusses the reduction in the number of marriages (and possible causes), but cites studies that say:  40% of children are born outside of marriage.  The author suggests a number of ways to assist these mothers and their newborn children.

Even if a couple is not married (or even if they are no longer in a romantic relationship), either parent can attempt to establish paternity of the child via a Petition to Establish Parental Relationship.  Once the parental relationship is established, the father then has rights to custody and visitation of the child (subject to the the “best interest” of the child) as well as the legal obligation of support.  Parents can also sign the Declaration of Paternity to facilitate the paternity process.

If you are a parent of a child born out of wedlock, be sure to talk to an experienced family law attorney to help determine your right and obligations as well as those of the other parent.  And perhaps most importantly, the rights of your child.

If Parents Can’t Agree

September 8th, 2014

When divorcing parents (or parents in a parentage action) who share joint legal custody cannot agree on how to raise their child(ren) (whether it be faith, school choice, or sports), one or both parents may ask the court for assistance.  California already requires parents to attend court-ordered mediation with Family Court Services.  In an opinion piece this Sunday in the New York Times, Dr. Robert E. Emery suggests the legal system should encourage more cooperation between parents, including the honoring of what he calls “parental agreements”.

A “parental agreement,” according to Dr. Emery could include an “enforceable contract… that a parenting coordinator could make decisions for them in the future if they fail to agree.”  In California, parents may stipulate to appoint a private child custody recommending mediator (sample Stipulation & Order here and here).

The Recommending Mediator can work closely with both parents to help them reach an agreement on an array of parenting issues. The parents can set the scope of the Recommending Mediator’s work.  For example, the Mediator can help with planning extracurricular and religious activities, but could not opine on the custody labels.  If the parties cannot reach an agreement, the Recommending Mediator makes a decision.  However, that decision can be challenged in the court, and a judge will ultimately be left to decide what is in the “best interest of the children.”

A Recommending Mediator may be helpful in reaching a resolution with the other parent in your case.  If you have custody/visitation questions or want to know if a Recommending Mediator is right for your case, be sure to talk to an experienced family law attorney.