Developing a parenting plan

Developing a Parenting Plan

How can parents decide on a custody and visitation plan?

Parents who separate should have a custody and visitation or parenting plan for deciding how they will share parenting responsibilities. A custody and visitation plan must be in writing and signed by both parties and a judge to be enforceable.

What if parents cannot agree on a custody and visitation plan?

If parents cannot agree on custody and visitation on their own they may go to court and ask a judge for a temporary order. The Court will first send them to Conciliation Court where a trained mediator tries to help the parties agree. In Los Angeles conciliation services are free. An appointment can be made by calling conciliation services at (213) 974-5524.

If the parties still cannot agree, the Court will make a temporary custody and visitation order that is in the best interests of the children. The temporary order will continue until the parties can reach an agreement or until custody and visitation is resolved after a trial.

If parents cannot agree on custody and visitation, they can also ask the court to appoint a mental health expert such as a psychologist to carry out a custody evaluation. A list of custody evaluators can be found at the Los Angeles Court 's web site at www.lasuperiorcourt.org.

Developing a Plan

While it is difficult to make generalizations about the suitability of various parenting plans many experts agree that during the first years of life, it is important for young children to develop an attachment to a primary caretaker and recommend frequent but non-overnight visitation with the non-custodial parent for short periods of time. As the children grow older and are better able to develop multiple attachments longer periods of continuous overnight visitation is encouraged.

Consider the practical aspects of any plan

A first step in developing a plan is charting out the schedules of the children and both parents. This will help you make realistic choices based upon practical considerations. Take a calendar and chart out in a colored pen the activities of each of your children (e.g. when they leave and return from school/day care each day, when they go to different activities such as music lessons, when they have vacations etc.) Next, take a different colored pen and chart your activities and commitments. Include when you go to and return from work, go to meetings, go out with friends etc. With another colored pen do the same for the other parent. You should then compare both parents’ plans to see if there is any common ground.

The children’s best interests

When parents decide custody and visitation they should develop a plan around the needs and best interests of their children and not their needs. In other words, they should adjust the plan to the children, not the children to the plan. Parents should be looking at their children's need for love, emotional support and security. Parents should take into account their children's age, personality and experiences. Children will generally be better off when both parents are involved and participating in their upbringing.

Next you should consider who has historically been responsible for different commitments with the children and which parent is practically able to fulfill them in the future. Questions you should consider are:

Who do the children turn to when they have a problem or need to share their feelings?

Who does homework with the children?

What do the children do on the weekends?

Do the children spend time with relatives and who takes them?

Who takes the children to medical appointments or picks them up in when they are sick?

Who provides the children’s physical care, such as bathing, changing diapers, arranging for sitters, haircuts, feeding?

How do you and your spouse discipline the children and set structure for them?

What kind of personal attention do each of you give to the children, such as teaching problem solving, reading, playing together, sharing activities?

Who is responsible for the children’s social activities, such as arranging birthdays, play dates, trick or treating, taking class trips, games, lessons, school plays etc?

Joint Custody

For older children one of the key issues is whether a joint custody is more appropriate than an arrangement where the non-custodial parent has alternate weekends and one or two overnights during the week. The answer will be different for each family. The parent’s relationship and their level of cooperation and also the children’s preferences can be as important as how much time the children physically spend with each parent. The Family Code provides that any parental plan must encourage frequent and continuing contact although it does not specify a particular plan.

The Legal Aspects of a Plan

Any parenting plan will have to make provision for who gets "legal" custody and who gets "physical" custody of the children. These are the terms that are used in agreements.

"Legal" custody means which parent gets to make important decisions about the children's education, religious upbringing, medical treatment and other legal decisions. If one parent gets to make these decisions they have "sole legal custody." If both parents get to make those decisions together, they have "joint legal custody." It is rare for one parent to be granted sole legal custody unless there are issues of domestic violence and substance abuse or there is a history of the parents being unable to communicate. In deciding on issues relating to legal custody, form "Joint Legal Custody Attachment" FL-341 (E) which has been approved by the Judicial Council of California is helpful. It can be found at www.courtinfo.ca.gov/forms/.

"Physical" custody means who the children live with on a daily basis. A parent has "sole" physical custody if the primary residence of the child is with that parent. The non-custodial parent then has visitation rights. The parents have "joint" physical custody if the children live with each parent for significant periods of time during the week.

A custody and visitation plan should be consistent and detailed. It should spell out who gets the children when and where in enough detail so that it is easy to understand and enforce. Important questions are who has the children in the week and on the weekends? Who transports the children for exchanges and to activities? Who gets the children on holidays and vacations? In California, the Judicial Counsel has developed forms to be used when requesting custody and visitation. The forms "Child Custody and Visitation Attachment FL-311 and "Children's Holiday Schedule Attachment” can be found at www. Courtinfo.ca.gov/forms and are helpful in developing plans.

Sample physical custody plans

Some states have developed model parenting plans that take into account what is appropriate for children of different ages and stages of development. The Oregon Judicial Department and the Supreme Court for the State of Arizona have both developed model parenting plans for Parents that suggest different parenting plan options. (see Oregon ’s plan at http://www.ojd.state.or.us/osca/cpsd/courtimprovement/familylaw/parentingplan.htm.

Arizona ’s plan at www.supreme.state.az.us/dr/Text/ModelPTPlans.htm)

The following samples are based on those parenting plans.

Parent A’s time with the child is indicated by solids.

Birth to 12 months

	Mon	Tue	Wed	Thur	Fri	Sat	Sun
8am
9am
10am
11am
Noon
1pm
2pm
3pm
4pm
5pm
6pm
7pm
8pm

Sample Language:

Commencing on _________, Parent A shall have physical custody of the minor child(ren) each week on Tuesday and Thursday from 4:30 p.m. to 7:30 pm. and Saturday from 10:00 a.m. to 6:00 p.m. Parent A shall be responsible for picking up and dropping of the minor child(ren) at the residence of Parent B. Parent B shall have physical custody of the minor child(ren) at all other times not designated as Parent A’s time.

Comments:

At this young age, infants form a primary attachment to one parent and long periods of absence from the primary attachment figure may be traumatic. Parents should minimize the infant’s basic sleep, feeding and waking cycles.

Pre-schooler 3 – 5 years

	Mon	Tue	Wed	Thur	Fri	Sat	Sun
Week 1
Week 2
Week 3
Week 4

The parties alternate weekends and the non-custodial parent has one or more overnights during the week.

Sample Language:

A. Commencing on ___________, Parent A shall have physical custody of the minor child(ren) alternate weekends from Friday, after the end of school/child care/camp (or at 5:30 p.m. if the child(ren) are not in school/child care/camp), when Parent A shall pick up the child(ren) from school/child care/camps, or at Parent B’s residence if the child(ren) are not in school/child care, until Monday, at the start of school/child care (or at 8:00 a.m. if the child(ren) are not in school/child care/camp), when Parent A shall drop the minor child(ren) off at school/child care/camp or at Parent B’s residence if the child(ren) are not in school/child care/camp.

B. Commencing on ____________, Parent A shall have physical custody of the minor child(ren) each week from Wednesday, after the end of school/child care camp (or at 5:30 p.m. if the child(ren) are not in school/child care/camp), when Parent A shall pick up the child(ren) from school/child care/camp, or at Parent B’s residence if the child(ren) are not in school/child care/camp, until Thursday, at the start of school/child care/camp(or at 8:00 a.m. if the child(ren) are not in school/child care/camp), when Parent A shall drop the minor child(ren) off at school/child care/camp or at Parent B’s residence if the child(ren) are not in school/child care/camp.

C. Parent B shall have physical custody of the minor child(ren) at all other times not designated as Parent A’s time.

* Instead of referring to alternate weekends, a plan can refer to 1st, 3rd and 5th weekends of the month. This generally avoids any confusion about which parents has custody on any given weekend.

Comments:

This plan is sometimes referred to a “Freeman” order. It may be suitable where Parent B has not been very involved in the day to day care of the child and has a busy work schedule. Three to five year olds may show increased anxiety moving between parent’s homes. This does not necessarily reflect on whether the other parent is not a good parent or does not want to be with the other parent. Depending on the maturity of the child and the practicality of the exchanges these times can be negotiated so that Parent A only has the child one or two evenings in the week and has shorter or longer weekends.

“2:2:3” Joint Physical Custody for older children

	Mon	Tue	Wed	Thur	Fri	Sat	Sun
Week 1
Week 2
Week 3
Week 4

The parties alternate weekends and each parent has the children two days in the week.

Sample Language:

A. Commencing on __________, Parent A shall have physical custody of the minor child(ren) each week from Monday, at the start of school/child care/camp (or at 8:00 a.m. if the child(ren) are not in school/child care/camp), when Parent B shall drop the minor child(ren) off at school/child care/camp, or at Parent A’s residence if the child(ren) are not in school/child care/camp, subject to paragraph C below, until Wednesday, at the start of school/child care/camp (or at 8:00 a.m. if the child(ren) are not in school/child care/camp), when Parent A shall drop the minor child(ren) off at school/child care/camp or at Parent B’s residence if the child(ren) are not in school/child care/camp.

B. Commencing on __________, Parent B shall have physical custody of the minor child(ren) each week from Wednesday, at the start of school/child care/camp (or at 8:00 a.m. if the child(ren) are not in school/child care/camp), when Parent A shall drop the child(ren) off at school/child care/camp or at Parent B’s residence if the child(ren) are not in school/child care/camp, until Friday, at the start of school/child care/camp (or at 8:00 a.m. if the children are not in school/child care/camp), when Parent B shall drop the child(ren) off at school/child care/camp or at Parent A’s residence if the child(ren) are not in school/child care/camp, subject to paragraph C below.

C. The parties shall alternate physical custody of the minor child(ren) during the weekends, from Friday, at the start the start of school (or at 8:00 a.m. if the children are not in school), until their return to school on Monday (or at 8:00 a.m. if the children are not in school) when the children shall be returned to their respective school or to the receiving parent’s residence, in the event the children are not in school.

Comments:

The child spends no longer than three days/nights away from either parent.

“2:2:5:5” Joint Physical Custody For Older Children

	Mon	Tue	Wed	Thur	Fri	Sat	Sun
Week 1
Week 2
Week 3
Week 4

The parties alternate two and five day periods with the children. Each parent has two consecutive midweek overnights each week and alternate the weekends.

Sample Language:

A. In Week 1, commencing ________, Parent A shall have physical custody of the minor child(ren) each week from Monday, at the start of school/child care/camp (or at 8:00 a.m. if the child(ren) are not in school/child care/camp), when Parent B shall drop the minor child(ren) off at school/child care/camp, or at Parent A’s residence if the child(ren) are not in school/child care/camp, until Wednesday, at the start of school/child care/camp (or at 8:00 a.m. if the child(ren) are not in school/child care/camp), when Parent A shall drop the minor child(ren) off at school/child care/camp or at Parent B’s residence if the child(ren) are not in school/child care/camp.

B. In Week 1 and 2, commencing ________, Parent A shall have physical custody of the minor child(ren) on Friday, after the end of school/child care/camp (or at 5:30 p.m. if the child(ren) are not in school/child care/camp), when Parent A shall pick up the child(ren) from school/child care/camps, or at Parent B’s residence if the child(ren) are not in school/child care, until the following Wednesday, at the start of school/child care (or at 8:00 a.m. if the child(ren) are not in school/child care/camp), when Parent A shall drop the minor child(ren) off at school/child care/camp or at Parent B’s residence if the child(ren) are not in school/child care/camp:

C. After the conclusion of Week 2, the two week rotation shall commence again with the physical custody schedule set forth above for Week 1.

B. Parent B shall have custody of the children at all times not designated as Parent A’s time.

Comments:

The works better for well adjusted children who have a good attachment to both parents. It allows for joint physical custody but each child is only away from the non-custodial parent for five days.

Alternating Weeks - Joint Physical Custody

	Mon	Tue	Wed	Thur	Fri	Sat	Sun
Week 1
Week 2
Week 3
Week 4

Sample Language:

Commencing __________, and on alternate weeks thereafter, Parent A shall have physical custody of the minor child(ren) from Monday at the start of school/child care/camp, or from 12:00 noon if the child(ren) are not in school/child care/camp, until Parent A returns the child(ren) to school the following Monday at the commencement of school, or 12:00 noon if the child(ren) is not in school/child care/camp, when Parent A shall return the child(ren) to Parent B’s residence. Parent B shall have custody of the child(ren) at all other times.

Comments:

The children may need to have mid-week contact with the non-custodial parent. This schedule can be altered to provide for a mid-week evening or overnight with the non-custodial parent.

Step up Plans

A frequently encountered problem is that a plan you develop now may not necessarily be appropriate in the future. For example, a plan for young children which permits the non-custodial parent limited overnights may not be appropriate when the children are older. A court may not be willing to change the status quo simply because the children have grown up and are better able to transition between households. One way of dealing with this is to create a “step-up plan” that provides increased periods of custody to the non-custodial parent when the children reach a certain age.

Step-up plans are particularly useful in reaching settlements where there are concerns about the parenting abilities of the non-custodial parent or the psychological harm that moving between two households will have on a child. Step up plans foster a sense of trust, responsibility and reliability as the non-custodial parent and the children familiarize themselves with the new routines and new households.

Step up plans are also useful to encourage parental responsibility where there are substance abuse problems or visitation has to be monitored because a parent has endangered the child. These step up plans should be drafted to allow the non-custodial parent increased time when they have met specific goals e.g. they have remained clean and sober for six months.

Holidays

It is common for parents to alternate holidays each year with one parent having a holiday in even years and the other having it in odd years. Many holidays are celebrated on a Monday and parents elect to extend the previous weekend. However, if you have a parenting plan which provides for switching custody on alternate weekends you will have to decide whether the weekend or the holiday schedule take precedence.

Typical holidays and special days include Mothers/Fathers day, Memorial Day, children’s birthdays, July 4th, Labor Day, Halloween, Thanksgiving, Christmas Eve and Day, parent’s birthdays and family reunions. Jewish holidays may include Passover, Rosh Hashana and Yom Kippur. In deciding on issues relating to holidays, form "Children’s Holiday Schedule" FL-341 (C) which has been approved by the Judicial Council of California is helpful. It can be found at www.courtinfo.ca.gov/forms/

During the winter vacation many parents elect to divide the winter vacation. Since the midway point may or may not include Christmas Eve and Christmas Day parents may also elect to split these days.

During the summer recess many parents provide that either parent may have the children for two or three continuous weeks provided that they give each other sufficient notice in advance of their plans. If their plans conflict one parent’s choice prevails in odd years and the other parent’s choice prevails in even years.

Sample Legal Custody Plans

In deciding on issues relating to legal custody, form "Joint Legal Custody Attachment" FL-341 (E) which has been approved by the Judicial Council of California is helpful. It can be found at www.courtinfo.ca.gov/forms/ Where both parents are cooperative and are able to communicate the following joint legal custody language can be used.

Sample Language:

The parties shall have joint legal custody of the child(ren). In exercising joint legal custody, the parties shall make every reasonable effort to foster feelings of affection between themselves and the child(ren). The parties shall cooperate and consult with one another so as to reach mutual agreement on all issues affecting the health, education and welfare of the children, including but not limited to the following:

(1) Enrollment or termination in a particular private or public school/child care/summer camp;

(2) Beginning or ending the regular practice of religion;

(3) Commencement of psychiatric, psychological or other mental health counseling or therapy;

(4) Authorizing the children’s drivers’ licenses;

(5) Passport applications;

(6) Enrollment in regular extracurricular activities;

(7) Non-emergency medical or dental treatment, other than routine check-ups.

How do we modify a parenting plan if circumstances change?

Once a parenting plan has been signed by a Court, the parties can change the plan by agreement which they then submit to the Court. If they cannot agree a party can request that the Court modify the plan. If the plan is part of a final custody determination that party must prove that a change is in the best interests of the children and they may also have to show that there has been a substantial change of circumstances if the plan gave one parent primary custody.

The other parent wants to move out of state. What can I do?

In recent years several Court decisions have set forth the following rules regarding move-aways. If there has been no court order, the Court looks to the best interests of the children.If there has been a Final Court order and one parent wants to modify that order by moving out of state the legal standard depends on whether the original Court order provides for joint custody. The Courts have not specifically defined what percentage of time-sharing qualifies as joint custody. One Court decided that a plan which gave a father alternate weekend visitation and an overnight every week amounting to 30% custody was not joint custody but “liberal visitation.”

If the parents have joint custody, the court looks afresh at the situation and decides what is in the best interests of the child. However, if one parent has primary physical custody (generally more than 60%) it is much harder for the non-custodial parent to prevent the move away. They must prove that the move is being made in bad faith or would be detrimental to the welfare of the child. Only then will the Court review the best interests of the child.

However, the law in this area is far from settled and if you are negotiating a parenting plan you should ask your attorney for advice about what will happen if one parent decides to move away.

Links

www.lasuperiorcourt.org

www.courtinfo.ca.gov/forms/

http://www.ojd.state.or.us/osca/cpsd/courtimprovement/familylaw/parentingplan.htm

www.supreme.state.az.us/dr/Text/ModelPTPlans.htm

www.warrenrshiell.com

© 2006 Warren R. Shiell. All rights reserved. The information contained in this website is an "Advertisement." It is for informational purposes only and shall not constitute legal advice. Nothing in this Website shall be deemed to create an Attorney-Client relationship. An Attorney-Client relationship shall only be created when this office agrees to represent a Client and a Client signs a written retainer agreement.

Download california_custody_and_visitation.doc

Can a father terminate his parental rights to terminate his child support payments?

The answer is no. On August 25, 2011, the California Court of Appeal issued an unpublished opinion (that means it cannot be cited or relied upon by other Courts) that was interesting in its analysis. The opinion in the case of Snyder, the Court said:

"termination of parental rights and responsibilities is not authorized when a parent simply wishes to terminate the financial burden of supporting the children. One of the statutory grounds for termination must be shown and the court must find that termination would be in the best interest of the children. The trial court found that termination of father’s parental rights and responsibilities would not be in the best interest of the children. Father has not demonstrated that the trial court’s finding is not supported by substantial evidence. The trial court did not abuse its discretion by denying the motion to terminate on the ground termination would not be in the best interest of the children......... Under section 7822, subdivision (a)(3) [of the California Family Code], termination of parental rights and responsibilities is authorized when the parent leaves the child in the custody of the other parent for one year without communication and with intent to abandon the child, and termination is in the best interest of the child. Father’s motion did not evidence an intent to abandon his children. It indicated the children were in mother’s custody pursuant to court order; the lack of communication was caused by mother’s removal of the children to Colorado, the restraining orders against him, and the children’s failure to make the phone calls to him that the court ordered them to make." The motion expressed father’s frustration with being required to support his children financially, while having his efforts to remain a part of his children’s lives impeded. The motion, however, focused on father’s situation. It did not discuss the children or offer any reasoned argument why terminating his parental rights and responsibilities would be in the best interest of the children."

Can I move with my children to another country?

Unless the other parent consents, you will require permission of the Court. In such a situation you should consult an experienced family lawyer. The law in this area is complicated. usually one would expect the Court to order a full custody evaluation and hold an evidentiary hearing. A custodial parent's decision to move to a foreign country imposes additional burdens on the noncustodial parent. In such cases, "the child's best interests at a minimum require, first, continuing contact between the child and the parent remaining in this country, and second, guaranteed enforceability of the California custody order in the foreign nation." (In re Marriage of Abargil, supra, 106 Cal.App.4th at p. 1299; see also In re Marriage of Condon (1998) 62 Cal.App.4th 533, 547.)

Celebrating the end of a divorce in style

We have previously written about how people end their divorces. Here is another article from the New York Times on what one high profile couple did. Read article CHARLES Bronfman and his wife, Bonnie, are inviting 100 of their friends to an elegant evening of cocktails for what they hope will be a once-in-a-lifetime event.Image

© 2011 Warren R. Shiell. Warren R Shiell is a Los Angeles Divorce and Family Law attorney. All rights reserved. The information contained in this blog/website is an "Advertisement." It is for informational purposes only and shall not constitute legal advice. Nothing in this Website shall be deemed to create an Attorney-Client relationship. An Attorney-Client relationship shall only be created when this office agrees to represent a Client and a Client signs a written retainer agreement.

For more information visit www.la-familylaw.com

Children’s Preferences In Custody Disputes

Warren R. Shiell

Loving parents usually listen to their children before making important decisions even if it means that their views do not necessarily determine the final outcome. For example, one might ask for a child’s opinion before buying a new house or deciding on a new school but that doesn’t mean that they get to make the final decision. So when parents divorce it is only natural to discuss children’s preferences. An influential therapist has said, “Children feel powerless at divorce and should be invited to make suggestions that the adults will consider seriously. In this way they can feel active instead of passive agents in the crisis.” FN1

However, when parents cannot agree on a parenting plan and the matter goes to court, one of the most difficult issues facing parents, therapists and courts who are called upon to make decisions about custody is the extent to which the preferences of children should be taken into account and the how they should be taken into account. In many states, a child’s preferences must be taken into account in determining their best interests.

In a custody case there seems to be a common misperception that once a child is twelve they get to decide which parent they live with. This is an urban legend. FN2.

Similarly, a judge is not going to ask a child to testify who they want to live with. In fact, many judges are extremely reluctant to allow a child to testify in court or even to speak to the judge privately in chambers. They do not want to place the child into the middle of the dispute and add even more emotional baggage for the child. Children in such situations end up carrying an enormous load of guilt if they favor one parent at the expense of the other.

Nonetheless, a child may want to express a preference about where they want to live. In such cases, there are usually ways for a court to hear the preferences of the children through a custody evaluation by a therapist who is trained in interviewing children. FN3. Some jurisdictions may appoint a minor’s counsel or guardian for the child. Before agreeing to such an appointment you should make sure that the attorney has the proper training to interview children.

When children are interviewed about their preferences, an evaluator will want to know the rationale for the child’s preferences and to consider them in the light of all circumstances of the family relationships to understand how they fit into the child’s best interests.

The first question is whether the child is expressing a genuine preference or they are mirroring the preference of one of the parents as a result of direct pressure or threats or a desire to please. In dysfunctional relationships, preferences may reflect the child’s alignment with the parent they most fear, or the parent they regard as the most unstable. Clues as to reliability can be discerned by the timing of the child’s statements, the type of words used by the child, and the extent they mirror the parents language. FN4

The second question is whether a child’s stated preference to live primarily with one parent is a result of factors which are clearly not in their best interests. Younger children may lack the developmental capacity to understand what life would really be like if their preferences became reality. They may not have a mature sense of time and not have a clear idea what a week without one parent would be like. Also a child may state a preference impulsively or for reasons which are not in their best interests. For example, an adolescent boy may state that he wants to live with his father. Upon closer examination, the evaluator finds out that the real reason for his preference is that the father provides no structure or discipline, lets him drink, stay out all night and so forth. Another example, would be a 5 year old girl who says she wants to live with her father because he buys her candy. Children are fickle and they may express a preference as a result of some minor frustration, “Mom, made me do homework and wouldn’t let me go out.” They may take a position in the heat of the moment just after an argument. Kids also tend to think that the “grass is always greener” and their allegiances fluctuate depending who they’ve just spent time with. That’s why a series of interviews over a period of time and after they’ve been with each parent is a good idea.

Another problem with giving great weight to children’s preferences is that it may weaken a parent’s authority over the kids, if the kids believe that they can control their parents by threatening, “If I don’t get what I want, I’m telling the Judge that I don’t want to live with you anymore.”

The above reasons are not reasons why you should not consult with and listen carefully to your children’s feelings and concerns when you divorce. However, it should be done sensibly with their best interests in mind and children should not be made to feel that they are porns in a battle between two parents.

This information is provided for educational purposes only. For more information about divorce and family law in Los Angeles please visit www.la-familylaw.com

FN1. Wallerstein and Blakeslee (1989).
FN2. In Texas, however, a child may file with the court an affidavit stating who they would like to live with. Texas Family Code section 153.008.
FN3. An excellent review is Richard A. Warshak’s “Payoffs and Pitfalls of Listening to Children.” Family Relations, 2003, Vol 52, No. 4.
FN4. The Art and Science of Custody Evaluations (2007) Gould and Martindale.

California Prenuptial Agreements

ENFORCEABILITY OF PRENUPTIAL AGREEMENTS

 By Warren R. Shiell

             In 1976 the California Supreme Court in the landmark decision of In Re Marriage of Dawley in which California’s Supreme Court recognized that prenuptial agreements that contemplated divorce were not invalid per se and against public policy but should be reviewed on a case by case basis to determine if they promoted marital breakdown. In 1986 California took another important step in recognizing the validity of prenuptial agreements by adopting its version of the Uniform Premarital Agreement Act which was further amended in 2002. This Act is now adopted in twenty four other states. The current version of California’s Premarital Agreement Act is contained in Family Code sections1600-1617.

             In order to ensure its enforceability any attorney drafting a prenuptial agreement (also referred to an antenuptial or premarital agreement) should be familiar with the provisions of California’s Premarital Agreement Act and the case law. For prenuptial agreements executed after January 1, 2002, the Family Code provides that an agreement will not be enforceable if either (1) the agreement was involuntary or (2) the agreement was unconscionable and there was no adequate disclosure or (3) the agreement violates public policy.

             The following general conclusions can be learned from these requirements which are discussed in more detail below:

 Both parties should be represented by independent counsel

• Never wait until just before the wedding to sign a prenuptial agreement
• Always provide full, fair and reasonable disclosure of all income, assets and liabilities of both sides
• Ensure that the agreement is fair and does not leave one party without any means of support in the event of divorce

 The agreement must be voluntary

             Family Code 1615 places on the party seeking to avoid enforcement the burden of demonstrating that the agreement was involuntary.[1] All prenuptial agreement executed after January 1, 2002 are deemed to be involuntary and therefore unenforceable unless the court finds that all of the following requirements are met.:

 1.   Independent counsel: The party had independent counsel or was advised to seek independent counsel but waived that right in a separate legal writing. This means that if you can only afford one attorney, the non-represented party must sign a separate written acknowledgment that they have been advised to retain an attorney but declined to do so. It is not enough that the acknowledgement is contained in the prenuptial agreement itself. It is often the case that the idea for a prenuptial agreement is initiated by one spouse: usually the one with the greater assets and income. That person may be tempted to provide assistance in finding and paying for the other’s attorney. It is good practice to find and pay for one’s own attorney. If you must rely on a referral from the other party or their attorney then get at least three referrals. Further, if a party cannot afford to pay an attorney, the other party should loan the money for legal fees rather than paying that attorney directly in order to avoid the appearance that the attorney is not independent.

 2.   Seven day waiting period: At least seven days must have elapsed between the date that the parties were “first presented” with the agreement and advised to seek independent counsel and the time the agreement was signed. This means that if you decide to consult an attorney about drafting a prenuptial agreement days before the wedding, you are too late. Even if you wait until a few weeks before the wedding, you may run foul of this provision because it is not clear whether the seven days runs from the first or last draft of the agreement. A conservative interpretation of the statute requires that once you have negotiated a final draft of the agreement, you must wait a further seven days before signing the agreement.

 3.   Full disclosure to an unrepresented party: If a party waives their right to independent counsel, for the agreement to still be enforceable the court must find the following: (a) they were fully informed about the terms and basic effect of the agreement and the rights they were relinquishing by signing the agreement (b) they were proficient in the language of the prenuptial agreement and in the language in which explanation of the effect of the agreement was given. Further this advice must be memorialized by the attorney in writing and given to the unrepresented party before they sign the prenuptial agreement. These requirements make it very difficult for only one party to be represented by an attorney. If you think that you are saving money by having only one attorney, you are not. That is because that attorney will have to prepare a lengthy opinion letter to the unrepresented party explaining not only the effect of the prenuptial agreement but also all the rights they will be relinquishing under California law. Therefore, both sides should always be represented by independent counsel in preparing a prenuptial agreement. 

4.   Duress, Fraud and Undue Influence: The court must also find that in signing the agreement or any of the other writings referred to above, a party did not act under duress, fraud, or undue influence. Fraud is an intentional concealment of a material fact with intent to deprive the other of a legal right. Duress is where a person has been deprived of their free will by a threat to the safety of their person, family or property. Undue influence takes place where one takes a “grossly oppressive and unfair advantage of another’s necessities or distress” or takes unfair advantage of a confidential relationship. The leading case of In Re Marriage of Bonds (2000) 24 Cal. 4^th is interesting because it suggests that there is a high burden to prove duress or undue influence. The Court found that there was no confidential relationship between parties contemplating marriage. They also stated that the overall fairness or unfairness of the agreement was not relevant to the test of its validity.  They found that the agreement was voluntary in spite of the fact that Bond’s fiancé was unrepresented, was presented with the agreement a day before the marriage, Swedish was her main language and it was unclear whether there had been full disclosure. In December 1987, Barry Bonds, the baseball player, told his fiancé, Sun, a Swedish waitress and make-up artist who was unemployed at the time, that he wanted a prenuptial agreement prior to the planned wedding that was scheduled to take place the following year. The couple were living in Phoenix Arizona and planned to fly out to Vegas on February 5, 1988 and get married the day after. On the day of the flight, Barry and Sun met at his attorney’s office where she was presented for the first time with a prenuptial agreement to sign.  According to evidence at trial she was advised to consult an independent counsel but declined because she had no assets.  The agreement also referred to a schedule of the party’s property and assets but there was no such schedule attached. The Supreme Court of California upheld the trial court’s finding that the agreement was voluntary:

“The trial court determined that there had been no coercion. It declared that Sun had not been subjected to any threats, that she had not been forced to sign the agreement, and that she never expressed any reluctance to sign the agreement. It found that the temporal proximity of the wedding to the signing of the agreement was not coercive, because under the particular circumstances of the case, including the small number of guests and the informality of the wedding arrangements, little embarrassment would have followed from postponement of the wedding. It found that the presentation of the agreement did not come as a surprise to Sun, noting that she was aware of Barry's desire to "protect his present property and future earnings," and that she had been aware for at least a week before the parties signed the formal premarital agreement that one was planned.”

       If the facts had been the same but the prenuptial agreement had been executed after January 1, 2002 there may well have been a different result since there as no written waiver of the right to obtain independent counsel, no seven day waiting period and no written explanation in Swedish of the effect of the prenuptial agreement and the rights that Sun was relinquishing.

       A court might find duress or undue influence if there is a history of domestic violence. The case of In Re Marriage of Balcof (2006) 141 Cal App. 4^th 1509 while dealing with a postnuptial agreement signed after the marriage is illustrative. In that case the court invalidated a post nuptial agreement on the grounds of duress and undue influence where the husband signed a post nuptial agreement transferring a percentage of his business to his wife as a result of continued verbal and physical abuse from the wife, including being hit in the face front of the children and threats by his wife to undermine his relationship with his children.

       In the Dawley case, the Supreme Court held that the fact that wife entered the prenuptial agreement because she was pregnant and was concerned about her financial security did not amount to under influence but only because “James, threatened with a paternity suit and likely loss of his position, was in no position to take advantage of her distress” reflecting this rough equality of bargaining power.” This appears to leave the door open that the threat not to marry a pregnant woman may be partial evidence of duress or undue inference. In other States the courts are split on the issue and one commentator has stated that where pregnancy is the only evidence of duress or undue influence, the cases tend to find agreements valid but where there are other aggravating factors in addition to the pregnancy, the agreement is more likely to be invalidated. [2]

 The agreement was unconscionable and there was no adequate disclosure

             A party may claim that a prenuptial agreement is invalid because it was both unconscionable when the agreement was executed and that there was no adequate disclosure.

             The burden is on the party claiming that the agreement is invalid. Unfortunately, there are no California cases that address whether or not a prenuptial agreement is unconscionable in this context. Applying the test of contractual unconscionability, most commentators argue that there must be both procedural and substantive unconscionability. Procedural unconscionability has been defined as oppression caused by unequal bargaining power and surprise due to hidden and unexpected provisions. Substantive unconscionability involves a one sided and unreasonable agreement lacking in any justification. [3]Factors which might have a bearing on the issue of unconsionability would be whether a party was presented with the agreement as a fait accompli at a lawyers offices just before the wedding or was given advanced warning and had an opportunity to review a draft before signing, whether any revisions were made to the agreement at the request of the party challenging enforcement, whether they were represented by counsel, whether they considered the agreement fair at the time of signing and whether the agreement’s terms were clearly set out and not hidden in small print. There are many cases upholding prenuptial agreements which seem unfair but are “well within the permissible scope of advantage to one of the parties.” [4]

             Even if the agreement is unconscionable there must also be a finding that there was no full disclosure for the agreement to be invalidated. The person claiming that the agreement was invalid must also prove all of the following elements: a) the party was not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party, (b) the party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided, and (c) that party did not have, or reasonably could not have had, an adequate knowledge of the property or financial  obligations of the other party.  It is therefore good practice to provide for full disclosure of all the parties’ income, assets and liabilities within the body of the agreement and for the parties to acknowledge that they have exchanged tax returns. The parties should also state in the agreement that they have waived any disclosure beyond that provided.

 Violation of public policy

            Provisions in an agreement that seek to impose moral or religious conduct upon the parties during the marriage, limit child support obligations and divest the Court of the power to make custody decisions in the event of a divorce are against public policy and may make the entire agreement unenforceable. Therefore it is a good idea to have a provision that the agreement is severable. Agreements which attempt to impose a penalty upon a party as a result of that party’s “fault” during the marriage (e.g. infidelity) are generally held to be unenforceable as contrary to the public policy underlying no-fault divorces in California. In one case a provision in an agreement that contained a liquidated damages clause of $50,000.00 payable by a party who was unfaithful rendered the entire agreement unenforceable. [5]  This case therefore makes it very unwise to contain any provisions which seek to place restrictions on the division of property or support on the basis of fault. A more difficult question is whether an agreement that makes provisions for lump sum payouts is unenforceable on the grounds that it promotes divorce.  In the landmark Dawley case the Supreme Court drew a distinction between terms which encourage or promote dissolution (invalid) and terms which reorders the property rights of the parties to fit their needs (valid).  Therefore, in one case a Jewish couple signed a “Kethuba” in which the husband promised in the event of divorce to give wife his separate property house and $500,000 or one half of his assets whichever was greater.[6] The court believed that the settlement was so substantial that it "threaten[ed] to induce the destruction of a marriage that might otherwise endure" and invalidated the agreement. In another case, the court upheld the agreement where the 76 year old husband millionaire promised to pay his 46 year old fiancé $100,000 if they divorced on the grounds that this payment was calculated to compensate her from the loss of spousal support from a former marriage and was therefore a proper "reordering of property rights to fit the needs and desires of the couple" even though the marriage only lasted a year.[7]  For this reason it is good practice to ensure that any payments following divorce are in the form of support instead of lump sum property payments.

 Special rules for spousal support

A waiver or a restriction of spousal support in the agreement is unenforceable if either the party was not presented by independent counsel or the agreement was unconscionable at the time of enforcement. There is no provision for a knowing waiver of the independent counsel requirement. It is impossible to know in advance whether the spousal support provision is unconscionable because it is tested at some time in the future. We know that a spousal waiver will not be enforced if it leaves an ill or disabled spousal unable to support themselves.[8] Unfortunately, there is scant California authority for the meaning of unconscionability in the support context. A leading Oregon case which has been cited by California cases suggest that a waiver of support will be upheld unless the other spouse has no other reasonable source of adequate support.[9] That case made it clear that adequate support means the minimum amount a person needs to support themselves and is not related to the parties’ marital standard of living.  A Colorado Supreme Court upheld a spousal support waiver between a millionaire husband and wife who was earning only $1500 after the divorce.[10] An Arizona Court of Appeals adopted what it called the “majority rule” established in these cases that spousal support waivers will be enforced unless it would render one spouse without a means of reasonable support or a public charge either because of a lack of property or unemployment. [11] However these cases are not binding on California courts which have not shown any reluctance to follow a “minority” rule if they feel that to be the enlightened position. It may be prudent to contain restrictions on the payment of support rather than an outright waiver in any agreement.

 

© 2009 Warren R. Shiell. All rights reserved. Los Angeles Divorce and Family Law Attorney. The information contained in this website is an "Advertisement." It is for informational purposes only and shall not constitute legal advice. Nothing in this   Website shall be deemed to create an Attorney-Client relationship. An Attorney-Client relationship shall only be created when this office agrees to represent a Client and a Client signs a written retainer agreement. This article states the state of the law as of 2009 and there may be subsequent changes in the law which render all or part of this article obsolete.

 

California Prenuptial Agreements, California Prenups, California Premarital Agreements

---

[1] In Re Marriage of Bonds (2000) 24 Cal, 4^th 1, at 37.

[2] Drafting Prenuptial Agreements by Gary N. Skoloff, Richard H. Singer, Jr. Ronald Brown (2008 Supplement case review)

[3]  Little v. Auto Steigler, Inc. (2003) 29 Cal. 4^th 1064.

[4]  In Re Marriage of Dawley (1976) 17 Cal. 3d 342 (premarital agreement in which all property, earnings and income acquired during marriage remain the acquiring party’s separate property); Marriage of Bonds (2000) 24Cal. 4^th1, (premarital agreement wherein each party waived any interests in any earnings and acquisitions of the other during marriage); Marriage of Cleveland (1976) 76 Cal. App. 3d 357 (agreement signed 15 minutes before marriage providing that all property then owned by each party acquired daring marriage would remain the acquiring party’s separate property).

[5]  Diosdad v. Diosdado (2002) 97 CA4th 470.

[6]  E.g Marriage of Noughrey (1985)  169 Cal App. 3d 326

[7]  In Re Marriage of Bellio (2003) 105 Cal App. 4^th 630.

[8] In Re Marriage of Rosendale (2004) 1119 Cal App. 4^th, 1202 (spousal support waiver unenforceable where wife suffered brain damage, on life support, numerous injuries. Court also stated that Family Code section 1612 only clarified prior common law requirements.)

[9]  Unander v. Undander (Ore. 1973) 506 P.2d 719.

[10]  Newman v. Newman (Col 1982) 653 P.2d 728.

[11] Williams v Williams (ariz 1990) 801 P.2d 495.

Surge in Child Support Modifcations Reported By Los Angeles Times

By Molly Hennessy-Fiske May 3, 2009 Los Angeles Times

Surge in child support modifications

Mark Boster / Los Angeles Times

Doreen and Carlos Mazariego wait for their case to be called at L.A. County’s Central Civil West Courthouse, where they are appealing for lower child support payments for Carlos’ children from a previous marriage.

As unemployment rises, so does the number of cases being reassessed. Collections are up as the state garnishees more unemployment checks, and more from the middle class are seeking the state's help.

By Molly Hennessy-Fiske 
May 3, 2009

California's rising unemployment rate is driving a steep increase in child support cases, as the newly jobless appeal for increases in monthly payments or argue that they can no longer afford the amounts ordered by the court.

In Los Angeles County, about 450 new cases are filed each day, double the amount at this time last year. More than 3,000 calls come in daily -- up 25% -- increasingly from custodial parents asking child support staffers to crack down on deadbeats. The number of parents seeking help with child support modifications has tripled during the last month and a half, with some parents showing up at 5 a.m. to wait in line.

 

Related Content

• 

  Interactive: Child support garnisheed

• 

  Interactive: California's rising jobless...

•  Family court

• Contact the reporter with your experiences

"Can we handle it? No," said L.A. County Child Support Services Director Steven J. Golightly.

Family court judges and commissioners are calling it the worst avalanche of new cases they have seen in 30 years, many involving laid-off workers who have struggled to find new jobs.

Paradoxically, higher unemployment rates have led to a slight rise in the amount of child support collected this fiscal year, in part because the state can easily garnishee unemployment checks.

As child support money taken out of payroll checks dropped by more than $20 million through the end of February, compared with the same period a year ago, money withheld from unemployment checks nearly doubled, rising to $64 million from $34 million.

Parents who once hired lawyers or handled child support privately are now going to courts or child support services for help, according to staff members.

"I have never seen the situation as bad as it is now," said Christine Reiser-Juick, lead attorney at the state-run Office of the Family Law Facilitator in Los Angeles County Superior Court's Central Civil West Courthouse, which helps parents who cannot afford to hire attorneys.

Reiser-Juick, a 10-year veteran of the system, said her staff can assist about 150 people a day and regularly have to turn away an additional 60 to 80. Many of the people they see are newly unable to afford their payments or to provide their children with health insurance, she said.

It appears to be a national trend. The American Academy of Matrimonial Lawyers in late March reported a 39% increase nationwide in the number of divorced spouses requesting changes to child support agreements.

At the Central Civil West Courthouse, benches outside 16th-floor family courtrooms were full of parents, some with children in tow.

Martha Padilla, 35, of Santa Fe Springs listened as her ex-husband pleaded with a judge not to raise his $758 monthly payments for their three children. Rogelio Gallegos, 40, a delivery truck driver, said his monthly pay was recently cut from $3,000 to $1,900, and he had a new wife and two other children to support. He wanted to pay less.

"I understand, sir, but having children means making sacrifices," Family Court Commissioner Nicholas Taubert said.

Padilla, a restaurant cashier, had asked for increased payments but offered to make do with the status quo, which she said she relies on to pay for after-school child care. Gallegos, holding his head in his hands, grudgingly agreed.

Two floors above them, dozens more parents waited for their names to be called for child support mediation.

Amador Rios, a mechanic, pays $225 a month to support his 11-year-old son. He came to ask for a reduction after his workweek was reduced to two days, lowering his weekly pay to $160.

"I earn very little, and I have to eat and buy gas," Rios, 43, said as he sat next to the windows, waiting for his name to be called. "There's no work. You go out and look, and they don't have it."

County child support attorneys used to postpone unemployed parents' cases for a few months until they found work, but that is no longer an option, they said.

"There's no guarantee they'll find anything," said Barbara Catlow, head attorney at the Central Civil West child support office.

Most of the cases Catlow sees involve blue-collar workers, but child support officials say they are seeing the same phenomenon in low- and high-income areas, urban and suburban. In Orange County, family courts received 722 requests for child support modification in February, compared with 518 during the same month last year. In the Bay Area county of San Mateo, modification requests were up 30% in February.

"They are either furloughed and they are working less hours, or they have become unemployed and they are trying to avoid accumulating that debt," said Iliana Rodriguez, director of San Mateo County's Department of Child Support Services.

In L.A. County, child support staff withheld 144% more in child support from unemployment checks in February than in the same month last year. The rise in collections from unemployment checks has offset other drops, at least so far. In March, L.A County collected $47.7 million in child support, about half of what was owed and a 2% increase from the same month last year.

Many custodial parents who are owed child support are on the swelling welfare rolls. When the state tracks down fathers and mothers who are delinquent in those cases, their monthly payments offset state aid already paid out to their families.

But there are also signs that more middle-class families are relying on child support to make ends meet. Typically, about 25% of families in L.A. County child support cases have never received government assistance. That rose to 34% in recent months.

In Orange and Ventura counties, the number of parents who had never received assistance and were referred by social services to child support offices increased 14% as of February, compared with the same period last year.

Child support officials said the increases underscore the needs of families who have fallen on hard times but still have resources that make them ineligible to receive welfare, food stamps or other aid. Getting child support owed to them is crucial, said Jennifer Coultas, a lawyer and special assistant to L.A. County's director of Child Support Services. "It's just really hard out there for families."

Coultas and other county child support officials are pushing for California to rethink its "fair share" formula for monthly child support payments owed by noncustodial parents. The guidelines, which take into account how much time children spend with each parent, work out to roughly 25% of the noncustodial parent's net income after state and local taxes for one child; 40% of net income for two children; and 50% of net income for three children. If a parent becomes unemployed, the payments may be adjusted based on new income -- the unemployment pay -- but only after an appeal to a judge for a modification.

Other states, such as New York, which is second only to California in child support collections, take both parents' income into consideration and allow judges to issue "poverty-level" child support orders if a parent becomes unemployed.

"Those states are quicker to respond to economic downturns," Golightly said.

In San Mateo County, Rodriguez, who also serves as president of the state Child Support Directors Assn., compares massive child support debts to foreclosed homes that people walk away from, unable to pay the mortgage.

"At some point, you set the bar too high and the person just feels defeated," she said.

But any attempt to change payment guidelines is likely to face strong opposition from mothers' groups. So far, state child support officials have not taken a position on whether changes should be made in light of the deep recession.

"We understand it's a difficult economic time, but we are focused on collecting child support and making sure those monies go to the individual it is owed to," California Department of Child Support Services spokeswoman T. Maria Caudill said. "Oftentimes, child support makes the difference between a family remaining economically self-sufficient and applying for aid."

child support modifcation