California Law
California Family Law
- Family Law
Family Law
Family law touches most people at least once in their lives. When getting married or dissolving a marriage, reaching adulthood or having children, people need to be aware of how their legal status changes and what their rights are. Most family law is state law; there is very little federal regulation of families. Because each state has the authority to regulate certain conduct relating to families within its borders, this chapter is specific to California. Related topics are covered in other chapters. Adoption in California is discussed in the Adoption Law Chapter. Legal issues of interest to elderly people, other than elder abuse, are discussed in the Elder Law Chapter.
Reaching the Age of Majority in California
In California, a person legally becomes an adult at age 18 and acquires most of the rights, privileges, responsibilities, and obligations of adulthood. These rights include the right to vote, the right to make contracts, the right to marry without permission from parents or guardians, and the right to serve on a jury.
Marriage in California
In order to be entitled to spousal rights and to be bound by spousal obligations in California, people must be legally married. Common law marriage is not legal in California; however, California does recognize common law marriages that are valid in other states. In fact, California is obligated by the Constitution of the United States to give full faith and credit to any marriage recognized by any other state. Legal marriage in California requires obtaining a marriage license and exchanging vows before an official authorized to formalize the vows. Officials authorized to conduct weddings include judges, magistrates, and licensed religious officials. The exchange of vows must be witnessed.
Who May Marry
An unmarried man and an unmarried woman, both capable of consent and both at least 18 years old, may marry without the permission of others. The parties who are marrying may not be under the influence of alcohol or drugs at the time they exchange vows. Young men and women under the age of 18 years may marry if they are capable of consent, have the consent of both parents or guardians, are capable of consummating the marriage, and obtain a court order granting permission. If they are underage, the parties must have premarital counseling. California law prohibits marriages between people who are already married, as well as marriages between an ancestor and descendant, brother and sister (even if half-brother or half-sister), aunt and nephew, or uncle and niece.
License Requirements
Marriage licenses may be obtained through the clerk of any county in California. The applicants must provide proof of their names. When the county clerk accepts the marriage license application, he or she gives the couple a brochure from the Department of Health Services with information about sexually transmitted diseases and genetic defects. The application is valid for 60 days. After the marriage is solemnized, the person officiating at the marriage ceremony must sign the license and endorse it with a statement that the marriage took place, the date and place of the marriage, and the names, residences, and signatures of the witnesses and the person officiating. In addition, the license must include:
- Parties' names (including the woman's maiden name or other previous name), residences, and dates and places of birth
- Names and birthplaces of parents
- Mothers' maiden names
- Number of previous marriages and marital status
- Signatures
The endorsed license must be returned within 30 days to the county clerk, who forwards it to the county recorder for recording.
Premarital Agreements
A premarital agreement is an agreement between parties made before they are married regarding property rights when the marriage ends. The issues covered by a premarital agreement usually include the rights and obligations of the parties in property (including the right to encumber, exchange, sell, transfer, and use property) and the disposition of property upon death, separation, or dissolution of the marriage. Premarital agreements made in California are valid and enforceable if they are in writing and signed by both parties.
Rights Within Marriage
Spouses have the right to respect, affection, cohabitation, and fidelity in the marriage. They have a mutual obligation to support one another and their children. Necessities such as food, clothing, and shelter are the responsibility of both spouses. Spouses are responsible for each other's contracts, debts, and damages. Married individuals have the right to sue and be sued (including the right to sue each other), to make contracts, to act as each other's attorney-in-fact or agent, to keep their own earnings, and to transfer property. When one spouse dies, the surviving spouse typically has the right to receive property from the deceased spouse. It is difficult, but not impossible, to disinherit a partner to a valid marriage.
Termination of Marriage
Dissolution--also known as divorce--is the legal termination of a marriage. A marriage is dissolved by a judgment and decree issued by a California county superior court. If the parties cannot agree on custody, visitation, child support, spousal support, and the division of property, the court will decide these issues.
At the time of filing for divorce, at least one of the parties must have been a California resident for six months and a resident of the county where the action is filed for three months. Once one spouse files the dissolution papers, the petition for dissolution and the summons to appear in court must be served on the other spouse. After the papers are served, the parties must wait six months until the hearing at which the marriage is legally terminated.
Grounds for Dissolution
California was the first state to have a no-fault divorce law. Under this law, the parties must show only that there are irreconcilable differences in the marital relationship. This means the couple cannot work out their problems, even with counseling. Because divorce is no-fault, a court cannot consider either spouse's fault in causing the divorce when making its determinations of custody, visitation, or other dissolution matters. Incurable insanity also is a ground for divorce under California law, but this ground is infrequently used.
Effects of a Dissolving of Marriage
People who are going through a divorce may agree with one another on how to handle many of the issues that arise. Matters on which the parties disagree, however, must be decided by a court. Court-ordered guidelines generally include instructions on child custody, visitation rights, child support, spousal maintenance, and division of marital property.
Child Custody
Child custody is determined by a court based on the best interests of the children. There are two different types of child custody: sole custody and joint custody. Sole custody gives one parent primary responsibility for raising the children. In joint custody, both parents share that responsibility. If the parents have joint legal custody the children reside mostly with one parent, known as the custodial parent, who is responsible for the routine decisions affecting the children, but both parents share the responsibility for making important decisions regarding the children. If they have joint physical custody, both parents are involved even in the day-to-day decisions affecting their children, and the children spend time with both parents, although not necessarily an equal amount of time with each.
In California, if people cannot agree about child custody, they are required to try to resolve the problem through family court mediation. Sometimes the mediation is offered through the county superior court at no charge. Mediation is discussed more fully in the Alternative Dispute Resolution Chapter. If mediation does not work, the judge will make a decision about custody.
Visitation
Typically, the non-custodial parent is granted visitation rights unless the court feels that such visits would be detrimental to the children. Parents may make child visitation agreements themselves, but if a friendly agreement cannot be reached, the court sets a schedule for visitation, or it orders that the non-custodial parent be allowed reasonable visitation. Certain other people who have close relationships with the children, such as grandparents, also may be allowed some form of visitation.
Child Support
Child support is financial assistance provided by the non-custodial parent under a court order to help support the children. Factors affecting the amount of child support include the needs and income levels of the parents, the children's needs, and the number of children. Child support is an independent obligation and must be maintained despite any other problems between the parents, such as disagreements about visitation. A recently enacted federal law requires employers to withhold wages from employees who are under a court order to provide child support. In California, some courts have ordered the employer of a parent who is required to pay child support to make the payment directly to the other parent out of the employee's salary.
Spousal Support
Spousal support is financial support provided by one ex-spouse to the other. Either spouse may seek spousal support. Factors that a court evaluates in setting spousal support include the standard of living enjoyed during the marriage, the relative incomes or earning potentials of the parties, and the needs of each party. Spousal support may be either temporary or permanent. If neither party needs spousal support at the time the marriage is dissolved, the parties may request to reserve judgment on this issue. This means that if a party's needs change later, he or she may go back to court and request a court order of spousal support. Like child support, spousal support must be maintained despite any disagreements between the ex-spouses, and sometimes employers may be required to pay the support directly out of an employee's paycheck.
Division of Property
Courts attempt to divide marital property on a fair, although not always equal, basis. Most property acquired by either spouse during the marriage is community property, including real estate, furniture, appliances, vehicles, cash, life insurance policies, retirement accounts, stocks, and businesses, as well as debts. One-half of all community property is owned by each spouse. At the time of dissolution, this property is divided equally, unless both parties agree in writing to divide it unequally. In the case of a business or another kind of property that cannot be split, the court will award the property to one spouse and order that party to pay the other for the lost interest in the property. Community debts must be divided equally between the parties as well. Property belonging solely to one spouse prior to the marriage, or a gift or an inheritance given only to one spouse during the marriage, is separate property. Separate property stays with the party who had it originally and is not included in the division of marital assets.
Judgment of Nullity and Separation
People who seek a judgment of nullity or a legal separation in California are not required to live in California or a particular county for a specified period of time.
Nullity
A judgment of nullity--also called an annulment--is a court finding that a couple's marriage never legally existed. A nullity may be granted only if the marriage is voidable. A marriage is considered voidable if one of the following conditions exists:
- One of the parties is a minor and proper consent for the marriage was not obtained
- One party is of unsound mind
- One party is physically incapable of consummating the marriage
- The marriage was obtained by fraud
- The marriage was obtained by force
Under certain conditions, a marriage is considered void from the start. If there is bigamy, polygamy, or incest, a court will annul the marriage by a judgment that it was void. It is important to note that a legal nullity is different from an annulment granted by a church. A religious annulment is spiritual, rather than legal, in nature and does not affect the legal status of the marriage. Likewise, a legal nullity may not satisfy the requirements for a religious annulment.
Legal Separation
A legal separation involves many of the same procedures as dissolution. A court may make decisions regarding custody, spousal and child support, and property rights. Decisions made in a legal separation are not final. The couple remains legally married and remarriage is forbidden. However, property obtained after a legal separation is separate property, not community property. As with a dissolution, a legal separation is granted on the basis of irreconcilable differences. Sometimes a legal separation is sought by those whose religious beliefs prohibit divorce but who still desire a separate life from their spouse and may need child and spousal support.
Paternity
Paternity is the condition of being the father of a child. While the identity of a child's mother usually is obvious from birth, the identity of the father may be unclear. Decisions regarding child custody, visitation, and child support frequently depend on whether a man has established his paternity of a child.
California has adopted provisions of the Uniform Parentage Act. Under California paternity law, a man is presumed to be the father of a child if:
- He and the child's mother were married to each other at the time the child was born or the child is born within 300 days after the marriage is terminated
- He and the child's mother marry or attempt to marry after the child is born
- He openly holds out the child as his natural child and receives the child into his home
- He and the child's mother execute a voluntary declaration of paternity
Some of these presumptions may be overturned by an action to declare the existence or nonexistence of the father and child relationship. Blood test evidence may be sufficient to overturn a presumption of paternity.
Abuse
Abuse is not easily definable. The legal definition of abuse is evolving and changing in response to society's developing understanding of the problem. More members of society are becoming responsible for reporting and preventing abuse. For example, under California law, health care workers are obligated to report actual or suspected child abuse or elder abuse. Abuse of family members is against the law, but different rules and standards apply to different categories of abuse.
Domestic Abuse
Domestic abuse--also called domestic violence--is defined by the California Domestic Violence Prevention Act of 1994 as violence against a spouse, cohabitant, fiancee, or other person with whom the abuser has a dating relationship, or someone formerly in any of these relationships. The Act also covers abuse of a minor son or daughter. The types of violence addressed by the Act include:
- Sexual assault
- Placing a person in reasonable apprehension of being seriously injured, or reasonable apprehension that another person will be seriously injured
- Intentionally or recklessly causing physical injury
- Intentionally or recklessly attempting physical injury
There are several options available to a victim of domestic abuse. A victim may file criminal charges, file a civil suit seeking damages, or seek a protective order against the abuser. Usually, the first step is to seek a protective order from the judicial officer of the superior court.
Protective Orders
A protective order is a court order issued under the Domestic Violence Prevention Act, the Uniform Parentage Act, or a dissolution, nullity, or legal separation proceeding. The protective order is enforceable throughout the state of California by any law enforcement officer who is shown a copy of the order.
Requirements
A protective order can be obtained from a judge at the superior courthouse in the county where the victim lives. To protect the victim (the petitioner) and substantiate his or her claim against an abuser (the respondent), it is important that application is made soon after the abuse occurs. The petition for a protective order usually must be made by the victim. There is no fee to file an application for an order, and if the petitioner is unable to pay the law enforcement agency to serve the order on the respondent, this fee may be waived.
For a court order to be granted, a petition must be supported with evidence of the abuse, so the abused person must fill out an affidavit describing the events surrounding the abuse and the need for protection. When completing the paperwork, it is helpful if the abused person has a picture of the abuser or, if a picture is unavailable, a description of the offender, along with work and home addresses. A prepared statement of all incidents of abuse, past and present and including dates and notes, helps to document the need for protection for the judge.
If necessary, the abused person may request an emergency protective order. These orders also are called temporary or ex parte protective orders. An emergency protective order might be necessary when an abused person is in danger and the protection is needed immediately. The procedure to obtain an emergency order is different than that for obtaining a standard order. Each court has an appointed judicial officer who is authorized to issue protective orders even when the courthouse is not open. A law enforcement officer must make a statement to the judicial officer that he or she has reasonable grounds to believe that the victim needs the emergency order. This kind of protective order is valid only for five to seven days.
Issuing the Order
A judge issues a standard protective order by holding a hearing with both parties present. The purpose of the hearing is for the abused person and the person accused of abuse to be able to tell the judge of the events surrounding the alleged abuse. In order to notify the person accused of the abuse of the hearing, a law enforcement officer serves the papers on the accused.
Regardless of whether the accused person attends the court hearing, the abused person must be present. At the hearing, the person alleging abuse presents medical records, police reports, and any other evidence of the abuse, including testimony. The respondent also has an opportunity to testify.
At this point, the judge usually rules on the matter by granting the protective order or dismissing the matter. In order to grant the petition, the judge must believe that the petitioner needs protection for his or her safety. Even if the respondent does not appear at the hearing, the judge may still issue a protective order if there is enough evidence of abuse. The protective order may be effective for up to three years. The judge may dismiss the matter if he or she does not believe that the request for protection is supported by the evidence.
Contents of a Protective Order
Usually a protective order prohibits the offender from contacting the victim, including visits to the victim's school or workplace when the victim is present. Battering, attacking, harassing, molesting, or threatening the petitioner or members of his or her household also are specified as prohibited behaviors. A judge also may include in the order his or her rulings about the use or control of property, or temporary child custody or visitation arrangements. However, the primary purpose of a protective order is to prohibit the abuser from continuing the abuse against the victim or against other members of the household. Respondents are prohibited, for the duration of the protective order, from purchasing or receiving firearms.
Violation of the Protective Order
When a protective order is granted, law enforcement agencies receive a copy and are required by law to record the information in the order into a database. The law enforcement agency with jurisdiction over the order forwards the information to the Department of Justice. If the offender attempts to violate the order, the police should be contacted through the 911 emergency system and should be notified that there is a protective order in existence. They should be able to access information about the protective order through the law enforcement system. Police officers must respond immediately and they have a duty to do everything possible to prevent further abuse. Once a protective order is enforced by the police (usually by removing the abuser from the premises), a complete police report should be filed documenting the incident. Police officers may arrest the abuser. Violating an order is a criminal offense. Stalking, which is discussed in the Criminal Law: Felonies & White Collar Crime Chapter, is a crime that carries more severe penalties if there is a protective order issued against the accused.
Child Abuse
Child abuse is a serious problem that may take many forms, including emotional maltreatment, neglect, physical abuse, and sexual abuse. The California Child Abuse and Neglect Reporting Act provides the definitions, rules, and responsibilities regarding child abuse.
General neglect is the failure of a person responsible for a child to supply necessary food, clothing, shelter, or medical care when that person is able to do so, or failure to protect the child from imminent and serious danger to his or her physical or mental health. Severe neglect is neglect that results in severe malnutrition or failure to thrive syndrome. When a child's caretaker intentionally fails to provide food, clothing, shelter, or medical care, or willfully allows a child to be in danger, the caretaker may be liable for severe neglect. Neglect may only be charged against a person who is legally responsible for the child. Neglect does not, however, cover instances in which a parent or guardian in good faith relies on spiritual prayer for a sick child.
Physical abuse is any physical injury inflicted on a child by other than accidental means. Any physical injury that is unexplainable by the child's medical history is physical abuse. Physical abuse also includes discipline or control by any means not authorized by law to manage persons who are mentally challenged or impaired.
Emotional maltreatment, such as verbal assault, causes harm to a child's psychological capacity or emotional stability. Repeated and habitual mental or emotional abuse by the person responsible for the care and nurturing of the child can cause serious problems in the child. Symptoms of mental injury may include:
- Eating, sleep, or speech disorders
- Low self-esteem
- Inappropriate interaction or inability to communicate with others
- Extreme apathy, fearfulness, hostility, or anger
- Anti-social behavior
Evidence of such harm is any observable or substantial impairment of the child's ability to function normally as compared with other children.
Sexual battery, sexual exploitation, or sexual assault of a minor is sexual abuse. Sexual abuse also includes involving a child in prostitution or pornography.
Reporting Child Abuse
Neglect and abuse are leading causes of death in children. By law, certain members of society, by virtue of their professions and positions, are required to report child abuse. Persons required to report abuse--known as mandated reporters--include health care professionals, child protective agency employees such as law enforcement officers, child care custodians such as teachers or camp administrators, firefighters, animal control or humane society officers, and commercial film and photographic print processors. Virtually anyone who works directly with children to provide care, protection, and supervision is required to report instances, actual or suspected, of child abuse.
Mandated reporters are obligated to report any abuse or neglect immediately to a child protective agency. Failure by a mandated reporter to report suspected child abuse is a misdemeanor. Mandated reporters also may be liable in civil actions for damages when the failure to report results in the abuser having the chance to hurt the child again.
Persons who report abuse or neglect in good faith are immune from civil or criminal liability. This means that if an investigation shows there was no abuse, the reporter cannot be sued, as long as he or she reported the alleged child abuse with an honest belief and without knowledge of any facts or events contradicting the abuse or neglect.
Contents of a Report of Child Abuse or Neglect
Mandated reporters may contact a child protective agency by telephone to report known or suspected child abuse. However, within 36 hours of making the report, the reporter also must file a written report. Although it is confidential and may not be disclosed from the report except under limited circumstances, the reporter must give his or her name. To expedite the attention given to a child in an abusive or neglected situation, the reporter also should have the following information ready to report:
- Name and present location of the child
- The nature and extent of the injury and any evidence of prior abuse
- Any other information regarding the child or family that might be helpful
If a child is in immediate danger, any person may report actual or suspected abuse to law enforcement through the 911 emergency system. Medical personnel must complete a medical examination of the child and file a report on a specific form designed for this purpose. Separate forms are used to record information obtained from examinations for sexual abuse, sexual assault, or chronic child sexual abuse. The child abuse report is forwarded immediately to the appropriate law enforcement agency, child welfare agency, and/or district attorney's office. Once a report is filed, the child protective agency works with law enforcement and district attorney's office investigators and contacts other relevant parties, such as a probation department or licensed social services facility.
Elder Abuse
Elder abuse is a recognized problem in California. Elder abuse includes physical abuse, psychological abuse, neglect, and financial abuse or exploitation. Neglect is failure to provide food, shelter, clothing, personal hygiene, and medical care. It also includes abandonment or failure to protect the older person from hazards to his or her health or safety. Financial abuse may include embezzlement, extortion, fraud, misuse of financial or other resources, or theft. Typically, the abuser is a member of the victim's family.
Mandated reporters of elder abuse in California include certain adult protective services and law enforcement workers, elder care workers, and health practitioners. People in these categories are required by law to report even suspected abuse, first by telephone, and then in writing. If the abuse occurs in a long-term care facility, the report is made to a law enforcement agency or to the local long-term care ombudsman. Reports of abuse occurring in other places are made to the county Adult Protective Services Agency in the Department of Social Services. These mandated reporters are immune from civil and criminal liability if they report abuse or suspected abuse, but failure to report is a misdemeanor, punishable by six months in jail, a $1000 fine, or both.
Other Remedies for Abuse
In addition to protective orders and mandated reporting to agencies designed to address the abuse, there are other remedies for victims of abuse. Abusers are subject to arrest for the crimes they commit. In addition to general assault and battery, specific abuse crimes in California include sexual battery, sexual assault, sexual exploitation of children, stalking, and battery of older people. Victims may wish to work with prosecutors to have offenders tried on criminal charges. It is also possible under some circumstances to file a civil lawsuit against offenders for damages. Criminal hearings and civil lawsuits are discussed further in the Process of a Lawsuit Chapter in this Guide.
People with any questions about abuse, or about other aspects of family law such as marriage, divorce, or adoption, should contact the agency or organization that deals with their problem, or seek the advice of an attorney.
Resources
Further information is available from: National Clearinghouse on Marital and Date Rape, 2325 Oak Street, Berkeley, CA 94708, (510) 524-1582.
National Council on Child Abuse and Family Violence, 1155 Connecticut Avenue #400, Washington, DC 20036, (202) 429-6695.
The following organizations have information about the problem of family violence and offer assistance to people in abusive situations: California Alliance Against Domestic Violence and Central California Coalition Against Domestic Violence, 619 Thirteenth Street Suite H, Modesto, CA 95354, (209) 524-1888; Northern California Coalition for Battered Women & Children, 1717 Fifth Avenue, San Rafael, CA 94901, (415) 457-2464; Southern California Coalition on Battered Women, P.O. Box 5036, Santa Monica, CA 90409, (213) 655-6098.
The California Consortium for the Prevention of Child Abuse, 1414 Fourth Street, P.O. Box 269057, Sacramento, CA 95826-9057, (916) 366-2386, is a group of organizations that seeks to prevent and redress child abuse.
The state agency for reporting child abuse is the California Department of Social Services, Office of Child Abuse Prevention (OCAP), 744 P Street Mail Stop 9-100, Sacramento, CA 95814, (916) 445-2771.
For birth, marriage, and death records, contact the California Department of Health Services, Office of State Registrar, 304 S Street, P.O. Box 730241, Sacramento, CA 94244-0241, (916) 445-2684.
To locate the local long-term care ombudsman or to report elder abuse, contact the California Department of Aging, 1600 K Street, Sacramento, CA 95814, 1-800-231-4024.
The California Department of Social Services, Adult Services Division, 744 P Street Mail Stop 17-01, Sacramento, CA 95814, (916) 657-2652, has information on adult/elder services, including protective services.
The Crime Prevention Center, Office of the Attorney General, publishes numerous free pamphlets on family law issues. For information or to order Battered Women, Child Abuse Prevention Handbook, Domestic Violence Handbook: A Victim's Guide, or Lifeline . . . Recognizing and Reporting Elder Abuse, contact the Crime Prevention Center, Office of the Attorney General, 1300 I Street, Sacramento, CA 95814.
The Family Violence Prevention Fund, 383 Rhode Island Street #304, San Francisco, CA 94103-5133, (415) 252-8900, is a national organization located in California.
The National Center on Women and Family Law, Inc. also publishes information relevant to family law questions. Contact the National Center on Women and Family Law, Inc., 275 Seventh Avenue #1206, New York, NY 10001, (212) 741-9480, to order Child Support and You, $5 publication; Mediation and You, $8 publication; or Pensions, $3 publication.
Contact the State Bar of California, 555 Franklin Street, San Francisco, CA 94102-4498, (415) 561-8200 to order What Should I Know About Divorce? and Who Will Get Custody of Our Children?, free pamphlets.