Category Archives: Uncategorized

Custody Evaluations and proposed legislation re People v. Sanchez (2016) 63 Cal. 4th 665

March 26th, 2018

People v. Sanchez represents a potentially significant evidentiary problem in the context of custody and visitation cases involving a custody evaluation and report.

Under the holding in Sanchez, which is a criminal law case, case-specific, out-of-court statements that are relied upon by an expert to form his or her opinion are considered hearsay and are inadmissible and excluded from the record unless a hearsay exception applies.  Custody Evaluators, and to a lesser extent Recommending Mediators, gather collateral testimony and documents and rely on such materials in their reports to formulate their opinions regarding custody and visitation.  Unless the parties stipulate to the admissibility of the Custody Evaluator’s report as a whole, any collateral evidence that may have supported the Custody Evaluator’s conclusions could potentially be excluded under Sanchez.  What’s more, if the Custody Evaluator’s findings relied primarily on excludable hearsay, there’s a possibility that the report and recommendations might be excluded.

To date, this concern over whether and to what extent Sanchez applies to custody evaluations remains somewhat theoretical.  The issue has not yet made its way through the appeals process and some experts in our field predict it never will due to the statutorily-sanctioned, investigative-nature of custody evaluations.  Nonetheless, amongst family law attorneys, the holding in Sanchez has created uncertainty as to whether a custody evaluation and its underlying evidence will or will not be excluded.  This uncertainty  often leads to litigation, and with it, the associated drain on both private and public resources.

Senate Bill 1276, which could come up for a vote later this year, proposes revisions to California Evidence Code §§ 801-803 is designed to address the above problem (and similar ones from the broader context of civil litigation).  The most significant changes are found within the text of § 801 of the Code.

The current language of Evidence Code § 801 code is as follows:

If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is:

(a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and

(b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.

Under the proposed legislation, the following section would be added to the above language found Evidence Code § 801 (along with some additional relatively minor changes):

(b) In civil proceedings, evidence of a statement used to support the opinion of an expert is not made inadmissible as hearsay if the court, in its discretion, determines that the statement is reliable. In determining the reliability of a statement, a court shall consider the following:

(1) Whether, the expert routinely relies upon similar statements in his or her professional capacity outside of the court.

(2) The expertise of the expert, including his or her experience, in evaluating the trustworthiness of the sources of information relied upon in forming his or her opinions.

The new Code creates an exception to hearsay that the Court has the discretion to apply in civil cases only, looking at two factors: (1) whether the information considered by the Expert is considered routinely; and (2) whether the Expert has the experience to evaluate the trustworthiness of the sources of information.  In the context of custody evaluations, the Evaluators routinely rely on collateral sources of information for their reports – such as documents, testimonials, interviews, etc. Custody Evaluators also have the experience and clinical expertise needed to sufficiently investigate the matter and to apply the proper weight and significance to the facts gathered by them. For example, Evaluators rarely rely on a particular collateral source without assessing the information obtained from one such source in relation to other data and information.  Therefore, it seems likely that the case-specific, out-of-court statements often relied on by Custody Evaluators — which may be considered hearsay in other contexts — will not be excluded as such under SB 1276’s proposed revisions to the Evidentiary Code.

Sanchez seems to make sense in the criminal law arena, where the individual rights that are at stake may require the highest due process protections and a more strict application of the hearsay rules. SB 1276 is designed to eliminate the uncertainty created by Sanchez in the context of civil matters that often rely on expert testimony, such as in the custody evaluation context.  For many family law practitioners in particular, the above distinction between criminal and civil practice under the new proposed code is a welcome change.  Hopefully, SB 1276 will pass.

Facebook = Service?

April 20th, 2015

In New York, a judge recently ruled that you can serve your spouse with divorce papers via Facebook.  The ruling is here.  (Please note that this ruling applies to one New York case, and it is not a binding rule regarding service in California.)

What is service?

Filing your dissolution (divorce) Summons and Petition only starts your case.  The other party must be served with the papers.

“Service” is getting your legal papers properly delivered to your spouse.  The other party needs to have appropriate notice so that his/her due process rights are protected.  The rules governing service are set forth in Code of Civil Procedure Sections 415.10-415.95.  These rules are set forth in simpler language at the Court’s Self-Help website.  Service can range from hand delivery to a notice posted on the courthouse wall.  What service is deemed appropriate depends on the case.

Personal service is preferred, but not always possible.  Service via Facebook (allowed in the referenced New York case) is a form of substituted service in that it “[n]ot only is it reasonably calculated to provide defendant with notice that he is being sued for divorce, but every indication is that it will achieve what should be the goal of every method of service: actually delivering the summons to him.”

If you are thinking of initiating a divorce proceedings, be sure to talk to an experienced family law attorney who can help determine how best to serve the initial pleadings.

 

Staying Married?

January 8th, 2015

One might find it odd for a family law (aka divorce) blog to post a link to a study that highlights the positives of staying married.  But family law attorneys are not there to make someone get divorced; they are there to help guide a party through the process and advocate for a party only after the party has decided to proceed with the dissolution (divorce).

According to the New York Times article, the study concludes “that being married makes people happier and more satisfied with their lives than those who remain single – particularly during the most stressful periods, like midlife crises.”

If you can work out any potential “irreconcilable differences”, we encourage that.  If you don’t think you can, the family law courts and family law attorneys are available to assist.

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.

The Petition – Part 6(c) – Void marriages

August 18th, 2014

Certain marriages are void at the start; it’s as if they never happened.  Incestuous and bigamous marriages are void at the outset.  Family Code §§ 2200, 2201.

But just because the marriage “never happened”, it’s still possible that the parties may have acquired the rights of a putative spouse and property acquired during the relationship (what would have been community property if the marriage wasn’t void) can be subject to equal division as quasi-community property.

If you think your marriage is void, be sure to speak to an experienced family law attorney to discuss what rights you (or your putative spouse) may or may not have as it comes to quasi-community property.

The Petition – Part 6(a), (b) – dissolution v. legal separation

July 1st, 2014

You’ve married.  And now you want to get divorced.  Or maybe legally separated.  What’s the difference?

A judgment of dissolution (aka divorce) means the parties are back to being unmarried and can re-marry if they so choose.  Fam. Code § 2300.  If the parties choose to be “legally separated” they cannot re-marry, but they can later enter a judgment of dissolution if they want.  Fam. Code § 2347.

Both a judgment for dissolution or legal separation can address paternity, custody and visitation, child support, spousal support, property division, and attorney’s fees.  The main difference is that in the latter, the parties are still married.  Some people choose that route for religious reasons or to maintain insurance or other financial benefits.

It’s All Your Fault!

You want to get divorced and share a few choice words about your soon to be ex-spouse.  However, the Court only cares about “irreconcilable differences” or “incurable insanity”.  Fam. Code § 2310.  California is a “no-fault” state which means the reasons behind the break-up are less important than the the fact you are breaking up.  However, bad acts are not ignored and will likely implicate the outcome of custody/visitation, support, and property division decisions.  (Each area to be discussed in a subsequent post.)

“Irreconcilable differences” is defined at Family Code Section 2311. Those differences can range from people growing apart all the way to adultery.  One party need testify that the marriage cannot be made right again.

“Incurable insanity” is defined at Family Code Section 2312.  A party needs to show “competent medical or psychiatric testimony” to obtain a dissolution/legal separation on these grounds.

If you want to learn more about the differences between legal separation v. dissolution, be sure to speak to a qualified family law attorney.

Judges Are People Too

June 3rd, 2014

California judges are required to abide by the Code of Judicial Ethics.  If Florida has a similar code, the criminal law judge shown in this video may have some explaining to do.

A California judge acting like the one in Florida could be removed for cause.

However, the law provides that a family law litigant can also move to have a judge or commissioner removed if the officer “is prejudiced against a party or attorney or the interest of a party or attorney appearing in the action or proceeding.” Code Civ. Proc. § 170.6.  That does not mean a  party cannot simply ask to remove the judge or commissioner because she doesn’t like or agree with the judge’s ruling.  There are time limits as to when a 170.6 Motion can be filed.  A party does not then get to pick the next judge to hear your case.

If you have questions about appearing before your family law judge or commissioner, be sure to speak to an experienced family law attorney.