Category Archives: Uncategorized

School Choice – Is Mediation Mandatory?

Judicial Oversight of Requests Regarding Education

Parties in family law cases involving custody may dispute school enrollment decisions related to their children, be it choosing between public and private school, or which district in which to enroll.  When communication between and the parties and counsel reaches an impasse and Court oversight is requested, is Family Court Services the next step or does the issue proceed directly to judicial determination?

When is Family Court Services Mediation Required?

            Family Code Section 3160 requires every Superior Court in California to have mediation services available.  If a family law matter is one that requires mediation, the mediation must occur before prior to the scheduled hearing.  Family Code Section 3175.  In setting child custody matters for mediation, Family Code Section 3170(a) requires that a controversy be sent to Family Court Services if it appears that a request has been made related to the parties’ parenting plan.  Specifically, “if it appears on the face of a petition, application, or other pleading to obtain or modify a temporary or permanent custody or visitation order that custody, visitation, or both are contested, the court shall set the contested issues for mediation.”  Family Code Section 3170(a).  Mediation is not required when the issue(s) involved are related to legal custody, such as educational decisions.

            The legislative motivation for this appears rational: while parties may be able to find middle ground on issues related to the sharing of weekends and scheduling intricacies of exchanges, they would be less willing to compromise on a particular pediatrician, involvement in therapy, or which specific school is in the best interest of their child.  Accordingly, removing these from topics addressed at Family Court Services and instead placing them solely before the judge economizes Court resources in accordance with public policy.

Preparation for Hearings Regarding Educational Decisions

            Preparing for this distinction in cases involving disputes over educational decisions is important, both in pleadings and on the day of the parties’ Family Court Services appointment.  Due to the fact that the judge will not have a Family Court Services Report to aid their decision, pleadings should contain as much information as possible regarding the educational options presented.  This is best achieved by way of thorough research introduced via exhibits or by a declaration from an educational expert.  On the day of the Family Court Services appointment, the client should be instructed to politely direct the focus of the mediation from the educational issue to the other issues at bar.  If a Family Court Services Report is later issued that contains recommendations related to education or other legal custody issues, a valid objection to exclude exists.  Finally, if it appears that the parties involved may benefit from discussing their differing points of view related to education, consider hiring a private mediator to review this in more detail with the parties prior to the hearing.

Gatekeeping – Appropriate and Protective or Inappropriate and Restrictive?

One of the central areas of dispute in custody cases is whether one of the parents should have less time with a child than the other.  One possible explanation for why one parent might want a child (or a child may express a desire) to have less access to the other parent is that the child has been harmed by the parent.    On the other hand, one of the parents may be trying to restrict the other parent’s access to a child without a valid, or valid enough, reason. These behaviors are often described as either “appropriate or protective gate-keeping” versus “inappropriate restrictive gate-keeping.”  Appropriate gate-keeping versus inappropriate restrictive gate-keeping were at the heart of the custody dispute between Brad Pitt and Angelina Jolie.  Brad Pitt alleged that Angelina Jolie was a restrictive gate keeper where Angelina Jolie alleged that she was a protective gate keeper. 

A parent actively restricting or attempting to restrict the other parent’s access to a child to protect the child from harm may be acting appropriately.  A fairly obvious example of why one parent may want the other parent to have limited access to a child could be a history of child abuse or exposure to domestic violence.  In the most extreme cases, appropriate gate-keeping may result in the non-custodial parent having no contact with a child because of the harm that such contact might cause. 

Conversely, the term restrictive gate-keeping would apply to a parent who inappropriately attempts to limit a parent’s access to a child, either by passively or actively encouraging a child to not interact with the other parent or by finding other means to limit such access, such as over-stating harm caused to a child while in the other parent’s care.  On the extreme end of such behavior, one parent may be actively alienating a child from the other parent solely due to animus or anger held towards that parent.  Inappropriate gate-keeping is harmful to a child due to the impact that such behavior may on a child’s ability to form a health bond with the non-custodial parent.  In extreme cases, inappropriate gate-keeping may result in the gate-keeping parent losing primary custody of a child.   

There are other reasons for parents to not have equal parenting time with a child that are not related to protecting or over-protecting a child.  For example, a child’s desire to be with one parent more than the other may be a healthy expression of a developmental need.  However, if a parent over-encourages such an expressed desire, even an appropriate expression of a developmental need by a child can end up blending into inappropriate gate-keeping behavior of an adult.  In other words, the difference between appropriate and inappropriate gate-keeping can be quite subtle and may include a blend of appropriate and inappropriate behaviors, which can make it very difficult to determine whether access restrictions will ultimately protect a child or cause him or her harm.

The framework described above is an important one to have in mind for a parent with concerns about the other parent’s behavior to the point that he or she believes that restricting the other parent’s access to the child, whether in minor or major ways, is needed.   A parent facing this dilemma will need to make sure that the level of gate-keeping is appropriate and in proportion to the alleged harmful behavior, or otherwise risk harming the child by unnecessarily over-restricting their access to the other parent.  Such over-restriction may also undermine the concerned parent’s legal position in a custody dispute.   

This framework is equally helpful and important to consider for the parent whose access is being limited.  In many cases, the other parent’s restrictive behavior may be motivated by both appropriate and over-restrictive impulses.  Acknowledging that there may be valid issues that the restricted parent may need to address for the benefit of the child, while also countering the inappropriate gate-keeping behavior of the other parent, can be critical for a child’s well-being.  Taking this more nuanced approach can also support the restricted parent’s legal case for having more access to the children.   

It is often very hard for both the parent seeking to limit the access of the other, and the parent whose access is being sought to be limited, to know what concerns are valid and require action, and how to evaluate such concerns in the broad context of the what is best for the children.  Some concerns may seem severe to a parent, but the solution may not be to go to Court if the Court is not likely to provide the relief sought.  Conversely, some concerns may be given too little weight, even though immediate action by the concerned parent may be required. 

An attorney with experience and training in custody will be able to provide a perspective on what might be in a child’s best interest, as well as what gate-keeping behavior the Court might consider to be appropriate or troubling and how a Court may respond to each set of facts.  An experienced mental health professional acting as an adviser may also provide invaluable, healthy perspective and guidance about what might be best for a particular child.  Finally, Co-parenting counseling or mediation may be the right venue to work out many of the parental concerns, which are often complex and do not fit into a “the behavior is over-restrictive and harmful” versus “the restrictions are appropriate and protect the child” dichotomy that is more likely to be played out in a Court-contested custody case.    

Regardless of whether a parent chooses a more adversarial or more cooperative approach to resolving custody, looking at custody disputes, especially highly contested ones, through a prism of appropriate, protective gate-keeping and inappropriate, restrictive gate-keeping is a helpful framework for thinking through the parental dynamic, and what is in a child’s best interest.        

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

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?

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?

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 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

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

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

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

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.