California Divorce Blawg

Ex-Girlfriend Does Not Have Legal Right To Pursue Custody Of Ex-Boyfriend's Children When Long Term Relationship Ends

Bill and Rachel were never married, but they did have three children together.  When they broke up Bill was given primary physical custody as part of the paternity action between the two of them.  Bill then began dating Jan.  The relationship grew to the point that Bill, his three children, and Jan all lived together for many years.  Unfortunately Jan and Bill ended their relationship.

After the break-up Jan filed papers in the paternity action between Bill and Rachel, seeking custody and visitation rights with the children.  She argued that she was the de facto mother of the children because of her long relationship with them, and because she and Bill held the children out to the world as their children.  She also raised concerns over Bill's suitability as a parent, and the living conditions in which the children were being raised. The Court of Appeal denied Jan's request explaining that as a non-parent she has no legal standing to seek custody.

The Court writes:

Jurisdiction to adjudicate custody and visitation in a proceeding under the Uniform Parentage Act ("UPA") is premised on there being a parent and child relationship. . .  Thus, parentage in favor of the party seeking custody/visitation must be established. . .  In a UPA action, the only interested parties are the children and the natural or presumed mothers and fathers. . . There can be only two parents, not three. . . In a same sex domestic partner relationship, a child may have two natural mothers (i.e., a biological mother and a mother meeting the presumed parent criteria in section 7611); but in a heterosexual relationship, there can be only one mother.

The UPA judgment adjudicated Bill as the children’s father.  Rachael is the children’s natural biological mother; the UPA judgment names her as their mother, and there is nothing in the record indicating her parental rights were terminated or there is an action pending to terminate her parental rights.   Accordingly, Jan cannot be the children’s presumed mother under sections 7611 and 7650, subdivision (a), and she is not an interested party who can initiate a UPA proceeding concerning the children.

The key distinction to be gleaned from this case is that Jan was seeking custody of the children, rather than just visitation.  That is a critical difference that sets the decision apart from grandparent visitation requests, step-parent visitation requests, etc.  The Court explains:

The custody provisions of the Family Code apply only in proceedings that are generally, if not invariably, initiated by the parents of a child.  Further, they have been held not to provide an independent basis for subject matter jurisdiction. . .  A nonparent seeking custody therefore lacks standing to initiate a custody proceeding under the Family Code.  A guardianship petition under the Probate Code is the only judicial means for a nonparent to obtain custody when the parents have not themselves initiated a custody proceeding. . .  Jan did not file a petition for guardianship.  Thus, for the custody provisions of the Family Code to have any application, they must be pertinent to an issue under consideration in an action initiated by Bill or Rachael.  As relevant here, there must be “[a] proceeding to determine physical or legal custody or visitation in an action pursuant to the Uniform Parentage Act . . . .”  (Fam. Code§ 3021, subd. (f).)

Please click here to read the entire court decision.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

Top Reasons People Stay in a Marriage

While a large percentage of first marriages - and even more subsequent marriages - end in divorce, for many couples there are still very good reasons to stay in the marriage and make it work.

Emotional Security - When your spouse is your best friend and confidante, the relationship provides an emotional safety net. This can be important, especially for people who may be prone to depression. By being and having a sounding board, you and your spouse have the opportunity to safely vent frustrations or express sadness without fear of rejection, embarrassment or ridicule.

Financial Security - Married couples may have financial advantages over divorced or single people. Certainly two incomes supporting a household are better than one, and it may be easier for married couples to obtain credit than single or divorced people.

Health Advantages - Some studies show being in a happy marriage can be good for your health. Additionally, married couples have the advantage of having a spouse to look after them if they become ill.

For the Children - In some marriages, staying together for the kids may not be the best decision; however, if parents can develop a strong relationship and set good examples, they have the opportunity to be role models for their children.

Other Reasons - There are many other reasons couples choose to make their marriages work. Some marriages may be successful for a variety of reasons such as a great sex life, shared interests and hobbies or a deep religious commitment. Divorce can be stressful, so those who recognize that they have a good thing going often strive to keep it.

Please click here for the original article at The Divorce Blog.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

What's the difference between a divorce, a legal separation, and an annulment?

A divorce (also called "dissolution of marriage" or "dissolution of domestic partnership") ends your marriage or domestic partnership. After you get divorced, you will be single, and you can marry or become a domestic partner again.

If you get divorced, you can ask the judge for orders like child support, spousal support, partner support, custody and visitation, domestic violence restraining orders, division of property, and other orders.

For married persons to get a divorce, you MUST meet California's residency requirement. For information about residency for domestic partners, click here.

A legal separation does not end a marriage or domestic partnership. You can't marry or enter into a partnership with someone else if you are legally separated (and not divorced). A legal separation is for couples that do not want to get divorced but want to live apart and decide on money, property, and parenting issues. Couples sometimes prefer separation for religious reasons.

You do not need to meet California's residency requirement to file for a legal separation. If you file for a legal separation, you may later be able to file an amended petition to ask the court for a divorce-after you meet the residency requirements.

In a legal separation case, you can ask the judge for orders like child support, spousal support, partner support, custody and visitation, domestic violence restraining orders, or any other orders you can get with a divorce case.

An annulment (or "nullity of marriage" or "nullity of domestic partnership") is when a court says your marriage or domestic partnership is NOT legally valid. A marriage or domestic partnership that is incestuous or bigamous is never valid. Other marriages and partnerships can be declared "void" because:

• of force, fraud, or physical or mental incapacity;
• one of the spouses or partners was too young to legally marry or enter into a domestic partnership; or
• one of the spouses or partners was already married or in a registered domestic partnership.

Annulments are very rare. If you ask to have your marriage or domestic partnership annulled, you will have to go to hearing with a judge.

Please click here for the entire article from California Courts.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

State Supreme Court to hear arguments against Prop. 8

The California Supreme Court announced this week it will hear arguments on the constitutionality of Proposition 8, the state's ban on same-sex marriage, in San Francisco on March 5.

The high court's written ruling on whether the voter initiative should be struck down will be due 90 days later.

The measure, enacted by voters on Nov. 4, amended the state Constitution to provide that "only marriage between a man and a woman is valid or recognized in California."

It overturned a decision in which the court said by a 4-3 vote in May that gay and lesbian couples have a constitutional right to marry. The panel is now considering three lawsuits filed by same-sex couples and a coalition of cities and counties to challenge the ban.

The lawsuits claim the measure is so sweeping it is a constitutional revision, which would require approval of two-thirds of the Legislature as well as a majority of voters. The court has said it will rule on both whether Proposition 8 is constitutional and, if so, whether it retroactively invalidates the estimated 18,000 same-sex marriages performed in California before Nov. 4.

The justices in today's order allocated an unusual three hours for the arguments in their State Building courtroom beginning at 9 a.m. on March 5. Cases are normally allotted only half an hour per side.

Lawyers for each set of plaintiffs will each get 30 minutes. The plaintiff groups are six same-sex couples and a civil rights organization, Equality California; a seventh couple that filed a separate lawsuit; and 15 cities and counties led by the cities of San Francisco and Los Angeles and Santa Clara County.

The proponents of Proposition 8, represented by Pepperdine Law School Dean Kenneth Starr and Sacramento attorney Andrew Pugno, will have an hour to argue to the court. Starr and Pugno had asked for extra time because their clients are
the only party in the case fully defending Proposition 8.

In a surprise move, California Attorney General Jerry Brown, whose job is to defend the state's constitution and laws, in December submitted arguments both for and against the measure and concluded that the court should strike it down.

Click here for the entire article from pleasantonweekly.com.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.