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In writ proceeding, California Appellate Court has ruled that Court Commissioners presiding over wedding of Mothers divorce attorney while post-divorce support matters were pending in Father and Mothers divorce was not an event that required Commissioners disqualification. In the case of Wechsler v. Superior Court (Wechsler), Mother and Father, in January 2010, engaged in post-divorce custody and support proceedings which were heard by Trial Court. In 2012, Mother filed a motion for support increase and Father countered by raising numerous other related issues. Trial Court subsequently appointed an accounting expert and granted several continuances. One week before a hearing scheduled for November 1, 2013, attorneys for Mother and Father appeared for an ex parte hearing on Fathers request for continuance. While they were waiting, Mothers attorney (A-1) told Fathers attorney (A-2) that Trial Court would be officiating at her wedding in December 2013. However, Trial Court made no mention of being asked by A-1 to officiate at the nuptials, and neither attorney raised the issue at the hearing. When the hearing concluded, Trial Court denied Fathers continuance request.

On October 25, 2013, Mother filed a motion for additional attorneys fees and costs, along with supporting declaration. Father countered by filing verified statement of disqualification, seeking an order disqualifying Trial Court for cause on the basis that Trial Courts agreement to officiate at A-1s wedding gave an appearance of a close relationship that could lead an average person to doubt Trial Courts ability to be impartial in the handling of Mother and Fathers case. Trial Court filed a verified answer, denying any personal relationship with A-1, asserting that she knew A-1 only though court appearances and attendance at legal functions, and stating that she would officiate at the marriage, but would not attend any other wedding connected functions, including the reception. Trial Court averred that she did not disclose this matter because it slipped her mind, and maintained that she had been and could continue to be impartial to all parties and counsel. After the disqualification matter was assigned to another judge for decision, that judge found that Father had failed to show a close personal relationship between [A-1 and Trial Court] that would raise doubts regarding [Trial Courts] ability to remain impartial. Accordingly, the judge denied the disqualification request.

Father then petitioned California Court of Appeals for a writ of mandate, claiming that the mere fact of officiating at counsels wedding required disqualification. In opposition, Mother contended that officiating, without more, did not require disqualification. Court of Appeals issued an Order to Show Cause. Meanwhile, Mother substituted new counsel in place of A-1. Acknowledging the matter may be moot but is an issue that is of continuing public interest and is likely to recur, Court of Appeals has now denied the writ petition.

Court of Appeals has ruled that (1) California Code of Civil Procedure Section 170.1(a)(6)(A)(iii) provides for disqualification of a judge where a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial; (2) the person must be a reasonable layperson (outside the judicial system) who is a well-informed thoughtful observer; (3) relying on the case of Carter (2005) 36 Cal.4th 1215 [judge who officiated at prosecutors daughters wedding before presiding over defendants death penalty trial not disqualified], judge who has no personal or social relationship with attorney at whose wedding he or she officiated need not be disqualified, but must disclose the fact of the officiating; (4) facts here do not establish a preexisting social or personal relationship between A-1 and Trial Court; and (5) mere fact of officiating at attorneys wedding, without more, is not grounds for disqualification, but the judge must carefully consider all factors that might be cause for concern before agreeing to officiate. Court of Appeals concludes that Trial Court need not have been disqualified on these facts.

A California Court of Appeals has ruled that a Trial Court erred by issuing an order denying a Mothers motion to relocate with the parties child and maintaining the custody status quo where its order was based on the premise that Mother would not move without the child and it failed to determine what order would be in the childs best interests if the move took place. In the case of Jacob A. v. C.H., Mother and Father, who were never married, were parents of their child who had Type I juvenile diabetes. When their relationship ended in December of 2007, Mother took the child and moved to Washington. She claimed that the move was prompted by her desire to get away from “an unhealthy environment,” but Father believed she just wanted “to deny him his parental rights.”

Whatever the reason, the move did not last long. Mother and child returned to California in January of 2008. Father then petitioned for custody of child. Mother responded with a motion for permission to move with the child to Washington. After Mother and Father participated in mediation, the mediator recommended that Trial Court deny Mothers request to move, and award Mother primary custody of the child if she stayed in California. After the hearing, Trial Court granted Mother and Father joint legal and physical custody of the child and denied Mothers motion. After two more mediation sessions, the mediator opined that allowing the child to move to Washington would be detrimental to child because the child would be likely to bond more closely to Mother, the child needed a relationship with both parents, and Father could not afford travel expenses to visit with the child. When mediator presented Mother and Father with a parenting plan that gave them essentially equal time, but precluded Mother from moving, Mother and Father agreed to it.

In November 2008, Mother again sought to move to Washington with the child. Father opposed the move and asked for more specific holiday schedule. After further mediation, Mother and Father adopted new holiday schedule, but did not reach an agreement on the move.

In August of 2009, Mother filed another request to move with the child to Washington and to modify parenting schedule. In a supporting declaration, Mother stated that she had tried and failed to find a job where she was living, but had one waiting for her in Washington, where she would also have support from her extended family, to whom the child had strong attachment. Mother claimed that Father did not know how to deal with the childs diabetes, and had a history of driving with the child on suspended license, failing to put the child in a car seat, failing to make required changes to the childs insulin pump infusion site, and a D.U.I. (the child was not present).

Mother and Father met with a court-appointed mediation, who recommended that Trial Court appoint counsel for the child, who would determine the childs best interests regarding the move. On October 16, 2009, Trial Court appointed counsel to represent the child. That attorney later submitted a report, finding that Mother and Father were entitled to a full evidentiary hearing regarding the move; the child should continue living in El Dorado County until the hearing took place; Trial Court should fashion a more stable parenting plan; and Trial Court should hold a review hearing if Mother intends to move without the child.

At trial in March of 2010, Mother testified in detail about her job offers, financial support and benefits, and family support she would receive in Washington. She proposed that Father be allowed to visit the child in Washington two times per month, have nightly phone calls, e-mails with pictures, and Web cam visits, as well as visits on “as little as 24-hour notice.” If Trial Court declined to let the child move, Mother proposed that the child be with her “whenever she was not in school” and have regular Web cam visits, nightly phone calls, and visits on similarly short notice. Mother explained that she had first-hand experience with Type 1 diabetes because she had the disease. She recognized that the child and Father had loving relationship, but promised not to shut Father out of the childs life if Trial Court permitted the child to move. Father told Trial Court that the childs moving would mean that he had little or no contact with the child because he could not afford the airfare to Seattle, and he objected to sending the child alone because of her diabetes. Father claimed that living with Mother and the child had given him extensive experience with the disease and the capacity to care for the child. Moreover, his girlfriend had training that enabled her to care for the childs medical needs and his parents were capable of helping out. The Mediator testified that Fathers inability to fund regular trips to Washington was “one of her greatest concerns” and that the childs move would have decidedly detrimental effect on the childs relationship with Father, as it would with Mother if the child stayed behind.

In response to questioning, the Mediator told the childs attorney that she “had an impression” that Mother would not move to Washington without the child. The Mediator also said that she had reservations about Fathers ability to care for the child, his tardy training in diabetes issues, his passing off the childs infusion-site problem to his girlfriend, and his failure to follow through when Mother sought to inform him about the issues in the childs daily life.

The childs attorney opposed the move, citing concern for father-daughter relationship, as well as the childs relationships with extended family, friends, and medical personnel. The attorney described both parties as good parents, but gave a slight edge to Mother as “more attentive to [the childs] needs.” However, the attorney said he did not believe that the move was in the childs best interests or that Mother was going to move if Trial Court did not approve it.

Trial Court found that Mother did not have bad faith motive for moving, but that the move would not be in the childs best interests. When the attorney asked what Trial Courts order would be if Mother moved without the child, Trial Court responded that it “would cross that bridge when we come to it.” In a statement of decision issued March 23, 2010, Trial Court found that uprooting the child from friends, family, and familiar surroundings and disrupting existing parenting plan, which provided for “frequent interaction with both parents,” would not be in the childs best interests and denied Mothers request.

Claiming that Trial Court erred by keeping in place a parenting plan that could not work if she moved, Mother appealed, and a California Court of Appeals has now reversed the Trial Courts decision and has remanded the case back to Trial Court for re-hearing. The Appellate Court has ruled that (1) when a parent in joint custody parenting plan seeks to move which makes that plan unworkable, Trial Court must consider childs best interests de novo and arrive at a new plan; (2) Trial Court erred by maintaining the status-quo based on the assumption that Mother would not move without the child; (3) Trial Court has no authority to prevent Mother from moving or to coerce her into staying by continuing the current parenting plan; (4) Trial Court should have assumed that Mother was moving and determined whether it was in the childs best interests to go with Mother and visit Father or to stay behind with Father and visit Mother; (5) Trial Courts error had its beginnings in the assumptions made by the Mediator and the childs Attorney that Mother would not move without the child, and their failure to make recommendations based on Mothers move; and (6) on remand, Trial Court must bear in mind that assumptions about whether Mother would actually move are “legally irrelevant” and that it lacks the authority to make an order that attempts to coerce Mother into not moving. The Appellate Court reversed Trial Courts order and remanded the case for a new determination of custody and visitation based on Mothers proposed move.

U.S. Tax Court has ruled that prohibition against using Trial Court order, decree, or separation agreement as written declaration for purposes of claiming dependency exemption is not applicable to those that were executed in taxable year beginning on or before July 1, 2008 (the effective date of the prohibition). In the case of Swint v. Commissioner, Mother gave birth to Fathers child in 1997. On February 13, 1998, Father and Mother entered into agreed entry in Ohio Trial Court that, among other things, provided that Father could claim dependency exemption for their Child if he was current in his child support payments, but the exemption would revert to Mother if Father fell behind in his payments. Neither Mother nor Father signed the agreed entry.

In 2000, Father married Wife. Between 2000 and 2010, Father and Wife filed joint federal income tax returns. When they filed their 2009 return, they claimed the dependency exemption for Child, along with a child tax credit. However, Child did not live with Father and Wife during 2009. In 2010, Father died.

On February 6, 2012, the IRS sent Wife a deficiency notice, disallowing the dependency exemption and child tax credit that she and Father claimed on their 2009 tax return. Wife then petitioned the U.S. Tax Court for a ruling on the claimed deficiency.

Now, U.S. Tax Court has ruled in favor of IRS. Tax Court has ruled that (1) per U.S. Internal Revenue Code Section 152(e)(1), child of divorced or separated parents is considered the qualifying child of the custodial parent (defined as the parent who has custody for more of the year); (2) taxpayer is entitled to claim dependency exemption for qualifying child; (3) Father was not custodial parent of Child during 2009; (4) Father could have been considered custodial parent if Mother had signed IRS Form 8332 [release of dependency exemption] or written equivalent releasing dependency exemption to Father; (5) per Income Tax Regulations, Section 1.152-4(e)(1)(ii), effective July 2, 2008, court order, decree or separation agreement may not be used as written equivalent to IRS Form 8332; (6) per Income Tax Regulations Section 1.152-4(e)(5), court order, decree, or separation agreement executed in taxable year beginning on or before July 2, 2008 may qualify as written equivalent of IRS Form 8332 if it contains the information required on that form; and (7) Mother and Fathers agreed entry does not qualify as written equivalent of IRS Form 8332 because it was not signed by them and the release provisions in it were not unconditional. Tax Court holds that Father and Wife were not entitled to claim the dependency exemption or the child tax credit for Child and enters judgment in favor of IRS.

A California Appellate Court has ruled that a Trial Court was wrong in applying California Family Code Section 1612(c), retroactively to invalidate a spousal support waiver in a prenuptial agreement that was executed by the parties in 1999. In the case of In re Marriage of Howell, Husband and Wife became engaged in 1998, after dating for about a year. On January 30, 1999, in anticipation of their upcoming marriage, Husband and Wife signed a prenuptial agreement that, among other things, contained a provision that each of them waived the right to receive spousal support from the other party if they were legally separated or divorced in the future. Husband and Wife were married in May of 1999, but separated in March of 2008.

At divorce trial, Trial Court bifurcated the issue of the validity of the parties prenuptial agreement from the other issues in the case and tried that issue first. According to Husbands testimony, he had already been married twice before and really didnt want to marry for a third time. When Wife pressed for marriage, Husband agreed to marry if Wife would sign a prenuptial agreement, as had one of his former wives. Husband testified that in May or June of 1998, he asked his attorney to prepare a prenuptial agreement, and Wife gave him a schedule of her assets and debts. Husband said he gave a copy of the agreement to Wife in December of 1998, and told her to take her time to read it carefully and to consult an attorney. According to Husband, Wife told him that she had discussed the agreement with her mother and some friends, but “concluded it was unnecessary because [Husband] had nothing to protect.”

Wife testified that Husband waited until she and her family had planned and paid for the wedding before announcing that he wanted a prenuptial agreement. She said she and Husband “argued several times” about the need for a prenuptial agreement, but Husband “threatened to call off the wedding” if she did not sign one. Wife claimed that Husband first gave her a copy of the prenuptial agreement about three days before she signed it. She said she did not understand all of its provisions and could not afford to consult an attorney to explain it to her. Besides, Wife asserted, it would have been too embarrassing to call off the wedding at that late date. So, she signed the agreement.

When the bifurcated trial concluded, Trial Court found that Wife was capable of understanding the need to consult an attorney, had sufficient time to do so, and “could have inquired as to the cost.” Wife, Trial Court continued, fully understood all the terms of the prenuptial, except for the spousal support waiver, and the prenuptial was neither lengthy nor complex, contained full disclosures by both parties, was not unconscionable, and was basically intended to keep the parties separate property separate. Trial Court determined that Wife did not sign the agreement under duress because she had received a copy of the agreement at least four months before the wedding and that time period was sufficient to have “diminished the coercive force of the normal desire to avoid social embarrassment or humiliation” of calling off the wedding.

Trial Court concluded, however, that the spousal support waiver in the prenuptial agreement was not enforceable because, as amended in 2002, California Family Code Section 1612(c) precludes enforcement of spousal support waivers against party who was not represented by independent counsel when waiver was signed or where spousal support provision (including waiver) was unconscionable at the time of enforcement. Thus, the parties prenuptial was valid and enforceable, except for that provision. Later, Trial Court ordered Husband to pay spousal support of $1,015 per month from July 1, 2008, through August of 2009, and $1,659 per month from September of 2009, until further Trial Court order.

Claiming, among other things, that Trial Court erred by applying amended Family Code Section 1612(c) retroactively, Husband appealed the Trial Courts decision. Now, the California Court of Appeals has affirmed the Trial Courts decision in part and reversed it in part. The Appellate Court has ruled that (1) when Husband and Wife signed the prenuptial in 1999, California Family Code Section 1612 did not require independent representation as precondition to a valid spousal support waiver; (2) a statute that substantially changes existing law may not be applied retroactively unless that statute specifically provides for retroactive application; (3) the 2002 amendments to Family Code Section 1612, which added subsection (c), substantially changed the then-existing law and did not specifically provide for retroactive application; (4) the legislative history of Section 1612(c) shows that the Legislature did not intend the retroactive application of that subsection; (5) the case of Fellows (2006) 39 Cal.4th 179, [per California Family Code Section 4, all amendments to Family Code apply retroactively unless amendment falls within statutory exception or specifically precludes retroactivity] is factually inapposite; and (6) parties spousal support waiver was valid and enforceable. The Appellate Court, thus, held that Trial Court erred by applying Family Code Section 1612(c) retroactively and reversed Trial Courts order invalidating the parties spousal support waiver. The Appellate Court also reversed Trial Courts subsequent spousal support orders.

A California Appellate Court has ruled that a Trial Court was wrong in denying Fathers motion to move to Washington State with the parties minor child because it unduly focused on the effect of the move on Mother, failed to apply the best-interests standard properly, made the finding regarding co-parenting unsupported by the evidence, and failed to consider Mothers prior domestic violence toward the child as required by California Family Code Section 3044. In the case of F.T. v. L.J., Mother gave birth to her and Fathers son in January of 2006. On February 17, 2007, Mother burned the childs arm with curling iron in an apparent effort to deter the Child from touching a hot iron. When Father arrived to pick the Child up, he noticed the Childs burn and took Child to the hospital for treatment. After hospital worker notified Child Protective Serviced and police, those authorities advised Father to keep Child in his care and allow Mother only supervised visits.

On February 28, 2007, Father filed a petition to establish his paternity of the Child and for sole legal and physical custody. Father followed that up with an Order to Show Cause, seeking sole legal and physical custody and supervised visits for Mother. Trial Court ordered parties to mediation and limited Mother to supervised visitation. When mediation produced no agreement, Family Court Services (FCS) counselor recommended that Father be granted legal custody of Child, that Child live primarily with Father, and that Mother have supervised visitation. In response to Fathers paternity petition, Mother admitted Fathers paternity, but sought sole legal and physical custody of Child.

On April 23, 2007, Mother and Father stipulated to Trial Courts adopting FCS recommendation as its order without prejudice to either party, and to Mothers paying $740 per month to Father for child support. Trial Court then adopted their stipulation as its order.

On September 14, 2007, Father filed an Order to Show Cause for an order permitting him to move with the Child to Texas, where his three children from prior marriage lived with their mother, he had extended family, and he expected to find more job opportunities and lower living costs. After Mother filed an opposition, Trial Court held a review hearing, modified visitation to give Mother unsupervised visits, and referred parties back to mediation. Mother and Father met with FCS counselor, but again were unable to agree.

On November 7, 2007, FCS counselor filed a report, stating that on November 6, 2007, Mother had entered a guilty plea to one count of violating California Penal Code Sections 242, 243(a) [simple battery] and had been granted four years probation. Counselors report also mentioned that Mothers other child lived with paternal grandparents. The counselor recommended that Father and Child be allowed to move to Texas, noting that Father had been Childs primary caregiver since Mother had inflicted harm on Child, resulting in battery plea, and that giving custody to Mother was “not an option.” The counselor further recommended that Mother and Father be given joint custody of Child, that Child would live with Father, and that Mother be granted additional unsupervised visitation before and after Childs move to Texas.

In December of 2007, Father took his Order to Show Cause regarding his intended move off of the Trial Courts calendar, but re-filed it on February 5, 2008. After Mother filed her opposition, Trial Court appointed Psychologist to do a psychological evaluation of Mother, Father, and Child, and to issue a report of his findings.

On September 12, 2008, Psychologist filed a report in which he made general findings that Childs bond with Mother would be detrimentally affected by the move, that Mothers actions in burning the Child were impulsive and profoundly insensitive, but not indicative of “broader abusive intent,” and that the move to Texas would not be in Childs best interests. Psychologist recommended that Trial Court increase Mothers custodial time with Child.

On September 18, 2008, Trial Court adopted Psychologists recommendations as temporary order. After several continuances, Trial Court referred Mother and Father for further mediation and ordered Psychologist to prepare supplemental report to be delivered five days before mediation began. When Psychologist did not comply, FCS proceeded with mediation, noting that Father now wished to move with Child to Centralia, Washington, because he intended to marry a woman who lived there. FCS mediator received information regarding Childs improved behavior at school after Father began caring for him, Childs anger issues, and the effect of the move on Childs relationship with Mother. Mediators report expressed doubt that Father would support that relationship, given communication difficulties between Mother and him, and advised postponing the move until Child was older. Mediator recommended that Father remain Childs primary caregiver and suggested possible timeshare if move took place.

On February 22, 2009, Psychologist filed a supplemental report, stating that Mother and Father seemed better able to co-parent Child than before, Childs anger issues seemed improved, Child seemed bonded to both Father and Mother and her husband, and Child needed frequent and continuing contact with Mother, who appeared to be the parent better able to share. However, Psychologist declined to make a recommendation as to whether the move should take place, and would only recommend that joint custody be ordered.

On March 5, 2010, Trial Court denied Fathers move-away request and asked Fathers attorney to prepare written order, subject to approval by Mothers attorney. On May 6, 2010, Trial Court issued a written order, finding that (a) Father was Childs primary caregiver; (b) best-interests standard applies in this case; (c) Psychologists statement that Mother and Father were “co-parenting in a relative[ly] cooperative and stable manner” was “red flag that the parties are not communicating”; (d) the Childs anger was, in Trial Courts opinion, the result of tension between Mother and Father; (e) the Child was working hard to maintain relationships with both parties; (f) counseling for the Child should have started immediately after Mother burned the Child; (g) the Childs relationship with Mother and emotional development could be significantly eroded by the move; and (h) Fathers reasons for the move (new wife and family) are not sufficient to justify the move. Trial Court stated that it had not been told that Father would move if his request was denied; thus, he should notify Trial Court if that is his intention, at which time Trial Court will determine whether custody change is needed. Concluding that the move was not in the Childs best interests, Trial Court denied Fathers request.

Claiming that the Trial Court failed to apply proper standard for a move-away case and for ignoring Mothers criminal conviction, Father appealed, and a California Court of Appeal has now reversed the Trial Courts decision and has remanded the case back to Trial Court. The Appellate Court has ruled that (1) California Family Code Section 7501 does not apply because there was no existing final judicial custody determination and Mother does not have the initial burden of showing that the move would be detrimental to Child; (2) Trial Court misunderstood the proper legal standard to be applied in move-away cases because it (a) declined to consider whether the move was in Childs best interests until it was informed that Father would move even if the Trial Court denied his request (no coercive orders), (b) based its order partly on determination that Fathers reasons for the move were insufficient, and (c) gave undue emphasis to the effect of the move on the Childs relationship with Mother; (3) Trial Courts finding that cooperative and stable co-parenting raised red flag is not supported by evidence; and (4) Trial Court failed to make specific finding regarding the application of California Family Code Section 3044 [rebuttable presumption that custody award to party who has harmed child is detrimental to childs best interests]. Appellate Court holds that Trial Court abused its discretion by failing to apply proper standard and denying Fathers move-away request. Therefore, Appellate Court has reversed and remanded the case back to Trial Court to reconsider Fathers request and to make specific findings regarding the application of California Family Code Section 3044 to these facts.

In the case of In re Marriage of Cecilia and David W., Trial Court issued Mother and Fathers divorce judgment on December 30, 1998. That Judgment incorporated the parties Marital Settlement Agreement which provided, among other things, that Mother would have physical custody of their 11-year-old son. Father was ordered to pay child support for Son until Son completed high school, reached age 19, or certain other events, whichever occurred first. In December of 2012, Mother filed a Request for Order, seeking adult child support for now-24-year-old Son under California Family Code Section 3910. In her request, she asserted that Son was not currently able to be self-supporting and might not ever be. Father then moved to join Son in the proceeding and Trial Court granted his motion.

At a subsequent hearing, Sons psychologist testified as an expert witness regarding Sons health issues and their day-to-day impact. Psychologist stated that Son suffers from Tourettes syndrome and ADHD, which affect his motor skills, and cause him to have learning disabilities and emotional management issues, especially under stress. He also opined that Son needed external support, schedules, and feedback to help him self-regulate emotion and talk him down from high levels of anxiety and panic attacks. Psychologist further testified about his treatment plan for Son and Son consultations with him when Son became stressed or overwhelmed. Other testimony showed that Son had graduated high school on time, had obtained two associate degrees from a community college, and was currently attending UC San Diego. In both college settings, Son needed accommodations for his issues, including intervention by Disabled Student Services, quieter test settings, extra time to complete tests, and the use of a laptop and tape recorder in class. Son also received private tutoring. He maintained B-range grades at UCSD, and currently lived on campus with roommates, but spent weekends, holidays, and summer vacations with Mother. Mother kept track of his activities and participated in meetings with Disabled Student Services. Son also has a car and drives himself. Testimony also showed that Son received $30,000 per year in financial aid, but Mother paid for his tutor, cell phone, vehicle costs, books, clothing, and groceries.

Mother stated that she had not applied for Social Security Disability for Son. As for Sons ability to find work and be self-supporting, psychologist testified that Son is intellectually capable of working, but his health issues would preclude him from working in a stressful environment. Psychologist also stated that he had counseled Son regarding career goals and job seeking skills. Neither Mother nor Father believed that Son could work, but Father anticipated that Son could work part-time. Son testified that he had never tried to get a job, but was interested in video game marketing and design and was participating in a weekly group that develops games and performs outreach to game companies. Son said he had not taken courses in video games because of the math requirement.

When the hearing concluded, Trial Court expressed uncertainty as to the amount of evidence about Sons vocational abilities. However, Trial Court found that Son could not both go to school and work, that his issues would make it difficult for him to get and keep a job, and that his ability to earn $30,000 to $40,000 per year was highly questionable. Trial Court further found that Son was without sufficient means because he would lose his $30,000 support if he left school and the minimum wage job he was likely to get would not permit him to live at his parents standard of living. In further findings and orders issued in August of 2014, Trial Court specifically found that Son was an adult disabled child, that the evidence did not support a finding that Son could obtain a minimum wage job, and that Son lacked sufficient means because his current support was tied to his attendance at UCSD. Accordingly, Trial Court made an order for adult child support under California Family Code Section 3910.

Claiming that Trial Court lacked jurisdiction to award adult support and applied incorrect legal standards in ordering adult child support, Father appealed. Now, California Court of Appeals has reversed Trial Courts decision and has remanded the case back to Trial Court for further proceedings. The Appellate Court has ruled that (1) California Family Code Section 2010 and Section 4001 give Trial Court jurisdiction to award child support for adult child; (2) California Family Code Section 3910 permits Trial Court to order child support for adult child who is incapacitated from earning a living (demonstrates inability to be self-supporting because of mental or physical disability or proof of inability to find work because of factors beyond his or her control) and is without sufficient means; (3) Trial Court applied incorrect standard in determining whether Son was incapacitated from earning a living because it focused on whether Sons issues would hamper him from finding and keeping employment instead of whether those issues rendered him unable to find work or become self-supporting; (4) Trial Court applied incorrect standard in determining whether Son lacked sufficient means because it focused on whether his current support hinged on UCSD attendance and his anticipated minimum wage job would allow Son to live at his parents standard, instead of on whether Son would have sufficient means to avoid becoming a public charge; and (5) there was insufficient evidence of Sons incapacity and lack of sufficient means to support Trial Courts order for adult child support. The Appellate Court reverses that order and remands the case back to Trial Court with directions to Trial Court to determine whether Son is incapacitated from earning a living and without sufficient means within the meaning of California Family Code Section 3910.

California Assembly Bill 610 (Ch 629) Suspension of Child Support During Payors Incarceration. As a pilot project that was effective until July 15, 2015, California Family Code Section 4700.5 provided that child support orders being enforced by a local child support agency would be suspended during any period beyond 90 days when the support payor was incarcerated or involuntarily institutionalized, unless he or she (1) had the means to pay support while in custody; or (2) was incarcerated for failure to comply with a child support order or for domestic violence against the support recipient or child.

Effective October 8, 2015, as urgency legislation, Assembly Bill 610 re-enacted California Family Code Section 4700.5 to re-establish, expand, and extend this pilot project. The new version of the statute applies to all child support orders, not just those being enforced by a local agency. And, instead of requiring the child support obligor to petition Trial Courts for adjustment of back child support after his or her release, the new statute specifies that the order will be suspended by operation of law during the relevant incarceration period, unless either of the same exceptions apply.

New California Family Code Section 4700.5(c) provides that a local child support agency may administratively adjust account balances for a suspended child support order if the agency is currently enforcing the order (even if it was not doing so when the obligor was incarcerated) and has verified that neither of the statutes exceptions for automatic suspension applies, but back support and interest accrued during the incarceration. However, the agency must first give written notice to both the child support payor and recipient, along with forms for objecting to the proposed adjustment. If either party objects within 30 days after receiving the notice, the agency may not adjust the arrearages unless it files a motion, serves a copy on the parties (who may again object), and obtains Trial Courts approval of the adjustment.

New California Family Code Section 4700.5(b) provides that the support obligation will resume on the first day of the first full month after the obligors release, in an amount presumed to be appropriate under federal and state law. The new statute specifies that it does not preclude the payor from seeking a modification based on changed circumstances or other appropriate reason, and it does not prohibit a party or child support agency from petitioning Trial Court to set child support or determine the back child support owed.

The new statute applies to all child support orders issued or modified on or before October 8, 2015.

The pilot project under the new statute will sunset on January 1, 2020, unless extended by subsequent legislation. Meanwhile, California Family Code Section 4700.5(h) requires DCSS and Judicial Council to evaluate the effectiveness of the administrative adjustment process provided in the new statute and report the results to the Legislature.

On June 26, 2015, the United States Supreme Court ruled, inthe case of Obergefell v. Hodges,that same-sex couples have the fundamental right under the Unites States Constitution to marry In that case, the Supreme Court was asked to decide whether Michigan, Kentucky, Ohio, and Tennessee could deny same-sex couples the right to marry or to have their legal out-of-state marriages recognized. The District Courts in each of those states had previously ruled in favor of plaintiffs who challenged the prohibitions in those states, but after consolidating the cases, the Sixth Circuit reversed the District Courts decision. The Supreme Court granted certiorari and now, a 5-4 majority has reversed the Sixth Circuit Court. The majority based their decision on the due process and equal protection provisions of the Fourteenth Amendment, finding that the right to marry is a fundamental right that is fully protected by the Constitution and is as applicable to same-sex couples as it is to heterosexual couples, and the right to have their marriages recognized by other states is similarly protected.

A California Court of Appeals has ruled that a Trial Court was not wrong by declining to enforce a 25-year-old child support judgment on equitable grounds where Mother had concealed Children for 15 years. In the case of In re Marriage of Boswell, Mother and Father were divorced in October of 1985. Their divorce judgment awarded custody of their two children, ages five and three, to Mother and ordered Father to pay child support of $70 per month per child. Father made his child support payments as required for two months. By that time, Mother had moved from California with Children, changed their names, and failed to tell Father their new addresses. Unable to locate Mother and Children, Father stopped paying child support. He did not see Children for the next 15 years. By then, the first Child had reached the age of majority. In 1998, M gave Father custody of the second Child, then 16 years-old, who lived with Father until he reached majority.

In 2013, when Children were over 30, Mother filed a motion to enforce the child support order, seeking a judgment of $92,734. Trial Court reasoned that enforcing the order on these facts would be inequitable, and that Mothers having concealed Children for 15 years was unjust. Trial Court also determined that Mothers motion was untimely and barred by laches. Accordingly, Trial Court denied Mothers motion. Claiming that Trial Court relied on erroneous reasoning and that laches did not apply, Mother appealed.

California Court of Appeals has now affirmed Trial Courts decision. The Appellate Court has ruled that (1) Trial Court has broad equitable discretion to decline to enforce a child support arrearages judgment on a finding of unclean hands; (2) where Trial Court makes fair and equitable ruling on contested issues of fact, its express or implied factual determinations are binding on appeal. The Appellate Court has further ruled that Trial Court was wrong in basing its denial of Mothers motion, in part, on laches (laches applies only to child support owed to State). The Appellate Court describes this appeal as another frivolous family law appeal, but declines to impose sanctions for filing frivolous appeal because Mother believes, and apparently prosecuted this appeal, because of [Trial Courts] ruling on laches.