Paul

When a family splits up, it’s common for the exes to go their separate ways.

Often it means wanting to move to another county, state, or even country.

Sometimes it’s to work at a better job. Other times it’s a way to heal and start life over. Or maybe you or your ex found someone else, the right person this time, and need to move far away to live together.

The trouble starts when a child is caught in the middle.

Courts prefer both parents to be present and part of the child’s life. The courts do not want to uproot a child and keep him or her away from a parent.

They see this as disruptive and prefer a stable and continuous custody arrangement for the child.

This situation makes it difficult for either ex to move far away with the child, but is especially difficult on the parent with primary custody who wants to leave.

California Family Code Section 7501 does not restrict the parent with primary custody from moving and changing the child’s permanent residence.

However, the other parent has to agree to the move.

Often times, parents can agree to terms on their own. Or, for the lucky few with money, flying cross-country is not a burden.

In these cases, moving far apart and still spend time with the child tends to work itself out.

For everyone else, trying to relocate with a child can be a huge burden and nightmare. For this reason it’s important to work with knowledgeable Bakersfield attorneys who specialize in ‘Move-Away Relocation Requests’ like those you find at Azemika & Azemika.

If you have sole custody and want to move, then your ex has to show that the move will be bad for your child.

There are exceptions to the rule, in which case working with an attorney would be in your best interest.

You are the primary custodial parent:

You want to move out of state with your child. Your ex says no. If you can’t work out an agreement… You have to go to family court and get a move away order that allows you to move with your child. You have to prove that moving with your child is in your child’s best interest. But courts already lean to deny move-away requests believing it prejudices the child’s rights or welfare.

In the celebrity case with actress Halle Berry, despite her financial resources, she couldn’t get an order allowing her to move her child to France.

You the non-primary custodial parent:

Your ex wants to move away with your child. If you don’t agree and can’t work anything out You need to file a stay order to deny the move. If your ex pushes the issue, you may have to prove that your child is better off not moving.

In some cases, the court will automatically assume that the primary custody asking for a move away order is going to move even if the order is denied.

So in a number of twisted court cases, when the primary custody parent got denied, the court then changed the custody arrangement giving sole custody to the other parent!

Yes this is confusing and could become a nasty surprise to both parents. So beware.

The best course of action is to work with Kern County family law attorneys experienced in move away and stay orders, as well as the ins and outs of child custody. Call our office: (661) 322-8166.

Collecting back child support can be a complex and lengthy process since each situation is unique. This article gives you a 30,000 foot view on the rights you have to collect child support, resources available to help you do it, and touches on common trouble spots to avoid.

In order for you to claim child support, you must first officially file and receive a court order establishing child support. To get this process started, you can use a number of agencies such as your county’s Family Law Facilitator, your Local Child Support Agency (LCSA), the Department of Child Support Services (DCSS). There is a lot of information out there in regards to claiming spousal support but unique situations when dealing with claiming spousal support are best answered by your Kern County Family Law Attorneys. Experienced Bakersfield divorce lawyers will answer your questions on what you can do if your ex doesn’t pay child support.

Biological parents. If you are the biological parent, you owe the child support. It doesn’t matter if you were never married, don’t show up on the birth certificate, never knew you had a child, if it was a one night stand, etc. The biological parent is responsible for child support.

Child support, spousal support, custody, and visitation rights are all treated as separate situations. If your ex does not pay child support, it does not mean your ex is not allowed to visit your child. No one “buys” visitation rights with child support.

You cannot use your ex’s new spouse, girlfriend, or boyfriend to collect child support. Family Code 4057.5(a) doesn’t allow you to do this except in very rare cases of extreme hardship on the children. You’ll want to get a competent attorney to help you here.

How much back child support can I collect, example #1? In California, the clock starts when you file and the court issues support orders. Example, you never filed for child support while your child was a minor. Your child is currently 23 years old. You now want to claim child support for the past. You may not get it because it’s too late to file.

How much back child support can I collect, example #2? You filed for child support when your child was 8 years old, your child is now 23 years old. Your spouse never paid one cent of child support. Your spouse is still on the hook to pay back all the child support from age 8 to age 18 (the past ten years). Once child support is due, it’s owed until paid, even after the child becomes an adult.

When do child support obligations end? It ends when your ex files a new order stating your child turned 18 years old and graduated high school and not living with a parent. Or because your child is 19 years old, got married, joined the military, is emancipated, or dies.

What happens if our child is a disabled adult child? If your child cannot support him or herself, the court may order both parents to continue support even past age 19.

In California, back child support owed (arrears) cannot be waived or changed by the Court, even if the parents agree to it for whatever reason. Once owed, its always owed.

However, a Modification of a California child support order can be filed due to a change in circumstances. Such as:

Parenting time changed, Income from either parent changed, A parent has new children from another relationship, or The child’s expenses (child care, medical or other health related costs, etc.) have changed.

This only affects child support moving forward. It does not modify any child support owed before the Modification has been filed.

By law, interest gets added to the balance and a judge cannot stop this from happening. These charges can add up quickly and would be taken out of your ex’s paycheck.

Not paying child support has serious consequences especially if the court finds your ex has the ability to pay, but isn’t.

In this situation, the judge can decide that your ex is “in contempt of court” and threaten jail time. However, this is only used when all other options have failed.

The Child Support Enforcement Act of 1984 states that district attorneys (D.A.s) or state’s attorneys must help you collect child support. In any case, you’ll want to work with the court to enforce sanctions against your ex. And in California, you have the option of hiring a support enforcement agency to help you collect. Asking the help of an attorney early in the process is highly recommended. [link: https://azemikalaw.com/contact]

Once you get the proper help, some of the methods used to collect include:

Taking over tax refunds. Garnishing wages. Garnishing Social Security benefits Placing liens against or seizing property and real estate. Suspending business or professional licenses. Some states may revoke a driver’s license. In some cases, the federal government may refuse to issue a passport to your ex. And as a last resort, the court may impose a jail term.

You’ll still be able to enforce child support payment as above. Your ex cannot waive their obligations by moving to another state.

It maybe possible to enforce and collect child support if your ex lives in a Foreign Reciprocating Country and your state has an arrangement to enforce support judgments. But this is a complex area, so get the help of a competent attorney.

Your situation is unique. If you need action and advice that’s specific to Kern County and your real life situation contact our knowledgeable professionals at Azemika & Azemika Law, the premiere Bakersfield divorce lawyers.

Because the importance of this agreement, it makes sense to get legal advice and make sure you don’t miss anything that could come back to bite you. If you live in Bakersfield or Kern county our attorneys at Azemika & Azemika stand ready to help you.

A “Separation Agreement” is a ‘document’ or a ‘contract’ between you and your spouse. Do not confuse it with the ‘process’ of getting legally separated.

As a contract, it is legally binding and deals with all the aspects of your separation such as alimony, how your property is divided, insurance coverage, and more.

Your Separation Agreement can address where the children will live, spells out the visitation schedule, and how much time they’ll spend with each parent and when. Without this spelled out in a Separation Agreement you could end up losing many nights of sleep fighting over custody.

The Separation Agreement can divide up the responsibility on who pays for the living expenses such as mortgage/rent, groceries, taxes, utilities, insurance, etc. while separated.

Use this contract to agree on who pays whom and how much. It also serves as financial proof (like a receipt) that you can use to claim tax deductions during tax time.

This is a biggie. The Separation Agreement helps avoid confusion and weeks of he said, she said later on about the family assets.

For example, it can direct how savings and investment accounts will be managed while separated. Will real property like your house, boats, cars be divided or sold for cash, and who get’s how much of the proceeds.

If you have income producing assets such as rental property or a small business, the Separation Agreement can spell out who get the cash flow.

This contract (Separation Agreement) is necessary and useful to start over because it can also serve as the bases of gaining clear title, or clear the slate on loans so new ones can be taken out.

Your separation should not leave you poor in your old age. The Separation Agreement can guide how retirement accounts will be valued and split fairly.

You’re separating from your ex for a reason. Make sure its permanent. The Separation Agreement is proof and protection in case your ex changes his or her mind and decides to sue for more money, custody, or pretty much anything related to your separation.

If your ex takes on future debts and liabilities, your Separation Agreement proves you’re not responsible for paying any of them back.

If your ex gets into a car accident and the victim goes fishing and tries to take your money, the Separation Agreement shields you and beats back greedy people trying to get to you through your ex.

You can draft a Separation Agreement on your own. But seeing everything that’s on the line, you’re better off getting the support of an experienced attorney who can protect you and make sure you don’t overlook any important points that can blow up in your face later.

If you live in Kern County/Bakersfield, contact the lawyers at Azemika & Azemika or call 661-322-8166.

A California Court of Appeals has ruled that where a non-managing spouse makes a prima facie showing of the existence and value of community property assets in managing spouses post-separation control, the burden of proof shifts to the managing spouse to rebut that showing or prove proper disposition or lesser value of those assets. More specifically, Trial Court made a mistake, according to the Appellate Court, by failing to shift the burden of proof to Husband, as the managing spouse, to show that missing community property assets were not disposed of improperly and failing to charge Husband with the value of those assets when their disappearance was not explained. In the case of In re Marriage of Margulis, the parties were married for 33 years. On August 12, 1996, Husband moved out of the parties family home in Irvine and left for Chicago to start a new job. Wife stayed in the family home.

From then on, Husband continued his customary practice of having complete control over the parties finances. Husband paid the community property bills from several community property checking accounts, managed their investments (including accounts at Sutro & Co., John Hancock Clearing Corp., and two I.R.A.s at Charles Schwab), sent Wife money from time to time, and paid her expenses. Husband made payments from various checking accounts and freely transferred community property funds between them. According to tax returns, Husband and Wife sold stock worth $1.1 million, plus two other investments worth more than $68,000 in 1996, and added to community property account funds totaling $369,000 from Husbands severance pay, sale of their Palm Desert home, and cashed-out life insurance policy. This situation continued until 2001, when Wife began making house payments on the family home from her earnings as an actress.

On June 7, 2002, Wife filed for divorce, but Husband did not file his response until February 21, 2007. Neither of those filings gave complete listing of parties community property assets and debts. In October of 2007, Wife filed a settlement conference brief in which she asked Trial Court to charge to Husband some $901,000 worth of community property assets, including proceeds from the Palm Desert sale, Bank of America line of credit, severance package, I.R.A. and securities sales, and life insurance cash-out. Wife asked Trial Court to award the family home to her, along with $20,000 received in re-finance proceeds, and $237,000 equalizing payment from Husband, and to assign to her a $45,000 unpaid tax obligation.

Husband claimed that family home was the only remaining community property asset, asked that it be sold and proceeds divided between him and Wife, and suggested dividing community property retirement or pension benefits equally, letting each party keep his or her car, bank accounts, and other financial accounts in his or her name at date of separation. Husband made no mention of any of the investment accounts or community property funds he received from his severance package, Palm Desert home sale, or life insurance policy cash-out.

On April 4, 2008, Trial Court granted parties status-only divorce judgment and scheduled a trial date on the remaining issues. Wife’s trial brief claimed higher values for investment accounts, but otherwise tracked her settlement brief. Husbands trial brief claimed that existing community property consisted of the family home and its contents, and I.R.S. tax loss carry-forward of $312,000. According to Husband, funds in various investment accounts had been spent paying community property expenses and Wife’s living expenses, and further depleted by the stock market losses, all of which Husband promised to substantiate with evidence introduced at trial.

At trial, parties main bone of contention was whether Husband should be charged for value of community property assets managed by Husband post-separation. Husband presented no documentary evidence to back up his contention that all but $20,000 of those funds had been spent, or any tracing evidence to show from which accounts those payments were made. As to the I.R.S. tax loss carry-forward, Husbands attorney claimed that the carry-forward was evidence of the I.R.A. withdrawals that had depleted those accounts. Wife testified that she had no personal knowledge or documentary records of any of the investment funds because Husband had kept them to himself. However, she submitted a two-page document (Exhibit 18), labeled as the parties confidential personal financial statement and dated February 1, 1999, which listed their assets as $133,000 in Merrill Lynch money market account, $230,000 in Charles Schwab I.R.A.s, $424,000 in marketable securities at Sutro & Co, real estate, and other investments.

After Husband admitted signing that document, Wife’s attorney urged Trial Court to accept the values listed on it unless Husband could prove that he used those funds for community property purposes and stock values declined in stock market. In closing argument, Husbands attorney claimed that Trial Court should give little weight to Exhibit 18 because it was outdated and unreliable. Although Trial Court admitted Exhibit 18 into evidence, it did not rely on the values listed in it.

Trial Court found that Exhibit 18, by itself, did not establish that the listed assets “did, in fact, exist.” Since it had no evidence on investment values except tax records and statements regarding the Charles Schwab account, Trial Court charged Husband with $184,000 in I.R.A. funds, but not with values of any other funds. In addition, Trial Court charged Husband with $369,000 in community property cash received from the desert property sale, life insurance cash-out, and severance pay, but not with Bank of America line of credit or funds representing unused vacation. Acting on Husbands request for reimbursement for post-separation payments on community property debts and Wife’s expenses, Trial Court found persuasive testimony from Husbands forensic expert, who testified that he had calculated the credits for Husband based on the check registers and Husbands “verbal explanations.” When Wife objected to that testimony as without proper foundation, Trial Court overruled her objections and awarded Husband reimbursement for community property expenses totaling $580,000.

Trial Court also found that Husband breached his fiduciary duty to Wife to maintain proper records of community property assets of which he had sole management and control, but, citing lack of evidence as to “what really happened to those accounts,” Trial Court ordered Husband to pay sanctions of $20,000 to Wife for her attorneys fees and costs. Trial Court then awarded the family home to Wife, and ordered her to make equalizing payment of $189,000 to Husband within 45 days or sell the family home.

Wife appealed the equalizing payment/sale provision of the judgment and Husband cross-appealed the finding of breach of fiduciary duty and sanctions order. Now, a California Court of Appeals has reversed the Trial Courts decisions and has sent the case back to Trial Court.

Wife’s Appeal

California Court of Appeals has ruled that (1) Trial Court erred by putting the burden of proof on Wife to prove that the missing assets existed because, as the non-managing spouse, Wife lacked personal knowledge and records sufficient to meet that burden; (2) Trial Court could find that Husband breached his fiduciary duties of disclosure and accounting; (3) shifting the burden of proof to the managing spouse regarding the records in his or her control is in line with Husbands statutory fiduciary duties and with the “policy and fairness concerns” that support the burden shifting; (4) the non-managing spouse does not need to show that there has been a mis-management or fraud as a prerequisite to shifting the burden of proof; (5) on these facts, the rule should be that when the non-managing spouse makes a prima facie showing of the existence and value of community property assets in control of the managing spouse, the burden of proof shifts to the managing spouse to rebut that showing or prove either that the assets were properly disposed of or had lesser value; and (6) if the managing spouse fails to meet that burden of proof, the Trial Court should charge him or her with the value of those assets. California Court of Appeals also ruled that Trial Courts placing of the burden of proof on Wife regarding the disposition of missing assets was error that requires complete retrial of the community property issues.

The Appellate Court further ruled that Trial Court erred by ordering reimbursement for Husband because (1) reimbursement is appropriate only where one spouse pays post-separation community property expenses from his or her separate property funds; (2) Husband failed to trace the funds he used to make the post-separation payments to separate property source; and (3) the evidence showed that Husband freely commingled separate property and community property to the extent that tracing may not be possible. California Appellate Court directs Trial Court on remand to make the necessary findings regarding the source of payments, plus determination of whether payments were in discharge of his duty of support.

Husbands Cross-Appeal

California Court of Appeals finds little merit in Husbands contentions, but reverses the sanctions order so that Trial Court may revisit the issue of appropriate remedy for breach of fiduciary duty.

A California Court of Appeals has resolved an issue that should have come before the appellate courts earlier, but it didn’t. The key issue to resolve in this new case was what happens when the biological father doesn’t want anything to do with his child and mother’s new man tries to raise that child as his own? Should biological father be allowed to get away with not paying child support by arguing that the man raising his child is the presumed father of the child because he took the child into his home and held him out as his own child [California Family Code Section 7611(d)]?

In reversal, a California Court of Appeals has just ruled that a Trial Court was wrong by determining that a man who provided care for and lived with another mans biological Child and Childs Mother is Childs presumed parent and that this relationship rebutted the presumption established by paternity testing that the other man is Childs Bio Father.

In the case of County of Los Angeles v. Christopher W., about two months after Mother and Bio Father ended their personal relationship, Mother told Bio Father that she was pregnant with his Child. In December 2013, Mother began dating another man (Other Man), who was well aware of Mothers pregnancy. Mother and Bio Fathers Child was born in May of 2014. Other Mans friends had teased him about becoming a daddy and someone put up a sign in Mothers room giving congrats to Mother and Other Mans on Childs birth.

When Bio Father went to the hospital to see Mother and Child, he saw the sign. Bio Father held Child briefly, but refused to sign Childs birth certificate, leaving no one listed as Childs father. Other Man, who had spent time with Mother before and after Childs birth, drove Mother and Child home from the hospital. During the next two years, Other Man saw Child about once a week for an hour and a half. Bio Father, on the other hand, saw Child only twice after holding Child at the hospital. Mother finally told Bio Father that she didn’t want him in Childs life, after which Bio Father neither saw nor financially supported Child.

In May of 2016, Mother, Other Man, and Child got a place together. They kept their finances separate and Other Man gave Child no financial support. However, Other Man played with Child, watched TV with him, took care of him in Mothers absence, and disciplined him. Child began calling Other Man Daddy along with Other Mans given name. Other Man was never listed as Childs father on any records nor had he held himself out as Childs father to Childs doctors. However, for a period of time, Other Man posted various photos of himself and Child on his Facebook page, with captions referring to Child as his boy and to himself as daddy.

On April 1, 2015, Los Angeles County, through its child support division, filed a complaint to establish Mother and Bio Father as Childs parents and to obtain a child support order requiring Father to pay $1,420 per month to the State Disbursement Unit. In a response filed May 1, 2015, Bio Father denied being Childs father, asked for paternity testing, and claimed that someone else had been claiming to be Childs bio dad. Bio Father followed up with a motion to join Other Man in the proceeding as Childs presumed father under California Family Code Section 7611(d) [man who receives child into his home and holds child out as his]. Seeing no opposition to the motion, Trial Court granted it and permitted Bio Father to file a petition to establish Mother and Other Man as Childs parents. Mother and Other Man each shot back responses, asserting that Bio Father was Childs Bio Father. Genetic testing subsequently established that Bio Father is Childs bio dad.

After an evidentiary hearing in August 2017, Trial Court issued a statement of decision on November 30, 2017. In it, Trial Court determined that Other Man was Childs presumed father under California Family Code Section 7611(d), based on his Facebook postings displaying nothing short of a parent-child relationship which Other Man had nurtured. Trial Court further determined that Bio Father qualified as Childs presumed father under California Family Code Section 7555 due to the genetic testing results. However, Bio Fathers presumption (based on test results) was not as strong as Other Mans (based on relationship with Child). In June of 2018, Trial Court entered judgment naming Mother and Other Man as Childs parents, but did not enter a child support order.

Mother appealed, and after addressing some procedural issues, Court of Appeals has now reversed Trial Courts decision. The Appellate Court has ruled that (1) a person responsible for child’s existence has a duty to support that child; (2) at the time of these proceedings, Family Code Section 7555(a) provided that a paternity presumption established by genetic testing could be rebutted only by particular types of evidence, which did not include a lack of relationship between the bio dad and the child or a closer relationship between the child and another man; (3) rebutting a paternity presumption under Family Code Section 7811(d) may be appropriate where enforcing the presumption imposes support obligation on an unwilling candidate; (4) Other Man never sought parental status and his relationship with Child would not be adversely affected by naming Bio Father as Childs parent (Mother and Other Man specifically asked Trial Court not to name Other Man as Childs parent); (5) as the man responsible for Childs existence, Bio Father should be named as Childs parent for child support purposes; (6) no existing decision has held that a bio dad should be relieved of his obligation of support and that obligation foisted on an unwilling Family Cod Section 7611(d) presumed father (taking child into his own home as his own child). Appellate Court reverses Trial Courts Judgment and concludes that clear and convincing evidence of Bio Fathers biological paternity rebutted the Family Code Section 7611(d) presumption regarding Other Man.

AB 2792 (Stats 2018, Ch. 83) Termination of parent-child relationship:

Under existing California Family Code Section 7823, a child may be declared free from the custody and control of either or both parents if all of the following are true: (1) the child has been neglected or cruelly treated by either or both parents; (2) the child has been a dependent child of Juvenile Court under California Welfare & Institution Code Section 300 and the parents have been deprived of his or her custody for one year prior to the filing of the termination petition; and (3) the one-year period is not tolled by any insubstantial periods of time during which the parent or parents had custody.

Effective January 1, 2019, this bill will add to item (1) the following: A finding that a parent committed severe sexual abuse (as described in Welfare & Institution Code Section 361.5(b)(6)) against the child shall be a prima facie evidence that the parent has neglected or cruelly treated the child within the meaning of this subdivision.

AB 929 (Stats 2018, Ch. 938) Spousal support factors:

This bill amends California Family Code Section 4320 to require Trial Court to consider all documented evidence of any history of domestic violence, as defined in Family Code Section 6211, between the parties or perpetrated by either party against either party’s child, including, but not limited to, consideration of (1) a no contest plea; (2) emotional distress that results from domestic violence inflicted by the supporting party against the supported party; (3) any history of domestic violence by the supported party against the supporting party; (4) issuance of a protective order after hearing pursuant to Family Code Section 6340; and (5) a finding by Trial Court during the pendency of a divorce, separation, or child custody proceeding, or other proceeding under the Domestic Violence Protection Act (beginning with Family Code Section 6200), that the spouse has committed domestic violence.

AB 2274 (Stats 2018, Ch. 820) Order regarding care of pet animals in divorce or legal separation proceeding:

This bill adds new California Family Code Section 2605. Family Code Section 2605(a) will provide that in a divorce or legal separation proceeding, Trial Court may enter an order at the request of a party to require a party to care for a pet animal prior to the final determination of ownership of the pet animal. The existence of such an order shall not have any impact on Trial Courts final determination of ownership of the pet animal

Family Code Section 2605(b) will provide that, notwithstanding any other law, including, but not limited to Family Code Section 2550 [manner of division of community property], Trial Court may, at a partys request, assign sole or joint ownership of a pet animal taking into consideration the care of the pet animal.

Family Code Section 2605(c)(1) defines care to include (but not limited to) prevention of acts of harm or cruelty, as described in California Penal Code Section 597, and the provision of food, water, veterinary care, and safe and protected shelter.

Family Code Section 2605(c)(2) defines pet animal as any animal that is community property and is kept as a household pet.

AB 1290 (Stats 2018, Ch. 475) Holder of attorney-client privilege:

Current California Evidence Code Section 953(a) defines the holder of the attorney-client privilege as either the client (if the client has no guardian or conservator) or per Section 953(b) (now renumbered as Section 953(b)(1)) the clients guardian or conservator. This bill amends Evidence Code Section 953 to add Section 953(b)(2), which provides that the guardian or conservator will not be the holder of the privilege if he or she has an actual or apparent conflict of interest with the client.

AB 2780 (Stats 2018, Ch.178) Earning capacity in child support orders:

Current California Family Code Section 4058(b) gives Trial Court discretion to consider a parents earning capacity in lieu of his or her income, consistent with the best interests of the children when making a child support order. This bill will amend that provision to add that a Trial Court should take into consideration the overall welfare and developmental needs of the children, and the time that the parent spends with them.

It will also amend Family Code Section 4331(e)(1) regarding the necessary qualifications for a vocational training counselor to include a masters degree in the behavioral sciences or other postgraduate degree that Trial Court finds provides sufficient training to perform a vocational evaluation.

SB 1436 (Stats 2018, Ch.116) Parent/child relationship in intestate succession cases:

Existing law establishes a natural parent and child relationship for the purposes of intestate succession based on provisions of the Uniform Parentage Act, except for those provisions specifically excluded. It also authorizes the use of a provision of the Uniform Parentage Act to establish such a relationship if it was impossible for the father to hold out the child as his own and paternity is established by clear and convincing evidence. This bill will amend California Probate Code Section 6453(b)(3) [ways that Trial Court may determine whether person is natural parent] to replace the word Paternity with the word Parentage and to change references to father to parent. It will also specify that where it was impossible for the parent to hold out the child as that parents own, the requisite clear and convincing evidence by which parentage may be established includes genetic DNA evidence acquired during the parents lifetime.

A California Court of Appeals has ruled that a Trial Court was correct in ruling that Child has three parents and that Husbands paternity having been established under California Family Code Section 7540 conclusive presumption does not preclude biological Father from being the third parent of Child. California Family Code Section 7612(c) applies even where there is a stable marriage.

In the case of C.A. v. C.P., Mother had an affair with a co-worker (Father) in 2011, who was told by Mother that she was separated from her husband (Husband). In fact, Mother and Husband were not separated and were cohabiting during the affair. When Mother and Father conceived a child, Mother initially kept that news from Husband and from her employer; Mother told Father that she didn’t want their other co-workers to know about their affair. Husband later learned of Mothers pregnancy by Father, but chose to continue with the marriage. Mother and Fathers Child was born in July of 2012.

For three years after Childs birth, Mother and Husband allowed Father to take a parenting role in her life. Father received Child into his home, held her out as his child to his relatives, participated in Childs medical evaluations and paid child support. From the time that Child was seven months old, Father had regular overnight parenting on some weekends and saw Child during the week. Father believed that Child carried his last name, until he learned otherwise when Child was eight months old. Meanwhile, Child became closely bonded to Father and his family.

In November 2015, Father filed a petition to establish his paternity of Child, to change her name, and to undergo paternity testing. Mother and Husband then barred Father from having anything to do with Child, and Father stopped paying child support.

At a preliminary hearing, Trial Court issued an order for paternity testing. However, Trial Court denied Fathers request for visitation based on Mothers testimony minimizing Fathers involvement in Childs life. After a trial, Trial Court found that Mothers misleading portrayal of Fathers involvement caused it to deny the visitation orders it would otherwise have granted, and that despite the period of time that Father and Child were separated, Child was still strongly bonded to Father. Trial Court found that Father was Childs presumed father under Family Code Section 7611(d) [received child into his home and held her out as his child] and that Husband was Childs presumed father under Family Code Section 7540 [conclusive presumption that child born during marriage is child of cohabiting husband who is not impotent or sterile]. Trial Court determined that Child was strongly bonded to Mother, Husband, and Father, and that applying Family Code Section 7612(c) [three-parent statute] is appropriate to preclude Child from suffering detriment. Trial Court also ordered parties to mediation to resolve any custody conflicts and added Fathers last name to Childs existing names (but not as her last name).

Claiming that Trial Court was wrong in applying Family Code Section 7612(c), Mother and Husband appealed. Now, California Court of Appeals has affirmed Trial Courts decisions. The Appellate Court has ruled that (1) Husbands having qualified as Family Code Section 7540 father does not preclude Father from bringing paternity suit, qualifying as Childs presumed father, or being named Childs third parent (second father); (2) Mother and Husbands having a stable marriage does not preclude Trial Court from applying Family Code Section 7612(c); (3) period of separation for Father and Child does not mean that Father cannot be third parent where there is a continuing strong bond between the two; (4) Trial Court discussed all appropriate factors before determining that Child has three parents; (5) Family Code Section 7612(c) does not impinge on states right to protect marriage or on Mother and Husbands ability to exercise their parental rights; and (6) Mother and Husbands claim re Fathers standing to request a paternity test is moot because the test was already done and the justices cannot undo that which was done.

A California Court of Appeals has ruled that a Trial Court was wrong by failing to list its reasons for deviating from guideline in making child support order of less than guideline for the child of an extraordinarily high earner and by relying on Mother and Childs expenses and lifestyle instead of the high earners expenses and lifestyle. In the case of Y.R. v. A.F., Father and Mother had a brief affair during which Mother discovered that she was pregnant with Fathers child. Mother gave birth to their daughter in July of 2006. Father, a successful director with a wife and three kids, paid some of Mother and Childs expenses and gave Mother $5,000 per month. Mother, a hair stylist, did not seek a formal support order until October of 2014. In her petition, Mother sought an order establishing Fathers paternity, and requiring Father to pay Childs health insurance, uninsured health care expenses, and half of Childs extracurricular activities.

After filing her petition, Mother sought documents regarding Fathers income and expenses, lifestyle, and payments for other expenses of his children. In response, Father stated that he was an extraordinarily high income earner, per California Family Code Section 4057, and could pay any child support order commensurate with Childs reasonable needs. Instead of responding to Mothers discovery requests, Father provided a declaration, listing his salary at $2.2 million per year or $190,000 per month. Mother disputed that Father was such a high income earner, but did not seek further responses. In her declaration, Mother described living in a three-bedroom, two-bath apartment in Santa Monica, which was cramped because her other two children also lived there. Mother asserted that she should be able to have a four-bedroom condo in the same area at a monthly rental of between $6,000 and $15,000 per month. She also asserted that Child should have a nanny, tutoring, take various lessons, and go to camp. She reported income of $1,833 per month and expenses of more than $6,000.

In response, Father reported an annual salary of a little more than $2 million, monthly rent of $20,000, more than $3,000 per month each for various living expenses, $31,000 per month for other expenses and so on. Father submitted a DissoMaster report, calculating guideline support for Father at $11,840 per month. Father argued that ordering that amount would exceed Mother and Childs stated expenses and urged Trial Court to order less than guideline. Father did not discuss his lifestyle, or calculate reasonable support based on his monthly income and expenses. Mother disputed Fathers income and her accounting expert calculated Fathers average income at $336,000 per month, for a guideline support order of $25,000 per month.

After a hearing, Trial Court found that Father was an extraordinarily high wage earner, but his income and expense report was unsubstantiated. Focusing on Mothers income and expenses, Trial Court found that guideline support would exceed Childs needs. Trial Court then ordered Father to pay Childs school tuition, 75% of her extracurricular activities and school expenses, all of Childs health insurance, and 90% of Childs uncovered medical expenses. It ordered him to pay child support of $8,500 per month as a reasonable amount to allow Child to live at an appropriate standard. When Mothers attorney objected that Mother and Childs past expenses were not commensurate with Childs current needs, Trial Court disagreed, saying that Mother had the burden of showing that Childs reasonable needs would not be met by the order. Trial Court final order contained the income and expense figures on which it had relied, but did not explain its reasons for deviating from guideline or state why the award was in Childs best interests. Mother appealed, and now California Court of Appeals has reversed and remanded the case back to Trial Court with directions.

The Appellate Court has ruled that (1) Trial Court failed to comply with statutory requirements for deviating from guideline; (2) as parent invoking high earner exception, Father had the burden of showing that guideline child support would be unjust or inappropriate; and (3) Childs needs should not have been determined by Mothers income and expenses, but by Fathers disposable income and standard of living (regardless of whether it benefits Mothers other children). The Appellate Court reverses and remands the case back to Trial Court to assess whether $25,000 per month guideline support order would exceed Childs needs and if so, to state in writing or on the record the reasons why the child support order should differ from guideline and is consistent with Childs best interests.