San Francisco Family Law Blog

I thought this was an interesting article. California is one of the states mentioned that does not use the term divorce, rather dissolution. We also abandoned alimony in favor of spousal support.

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Let's Leave 'Marriage' at the Altar
By Nancy D. Polikoff, Washington Post

The bill in the Maryland General Assembly that would eliminate the term "marriage" for all and replace it with domestic partnership deserves serious consideration ["Bill Would End Civil Marriage, Create Domestic Partnerships," Metro, Feb. 5]. More than semantics are at stake.

Marriage has a long history of exclusion: slaves, interracial couples and same-sex couples have been denied it. For centuries, marriage eliminated a woman's separate legal identity, subjugated her to her husband, and determined whether her children were full citizens or "illegitimate." Many people consider marriage to be moored to religious doctrine, so Sen. Jamie B. Raskin's argument for turning it into a solely religious institution is sound.

There's precedent for breaking with past family law terminology. About a dozen states no longer have "divorce." Instead couples end their legal relationship through a process called dissolution. Divorce was historically a nasty business, with one "innocent" spouse, the other at "fault" and both subject to social stigma. "Dissolution" is less value-laden and contentious. It is also a term associated with ending partnerships, so the choice of "partnership" to signify the commitment that two people make to each other is consistent with the modern trend.

Similarly, numerous states have eliminated "alimony." For centuries its definition was sex-specific; only men could pay alimony and only women could receive it. Even after modern reform made alimony gender-neutral, the old connotation of a man's lifelong obligation to support his wife remained. So new terms such as "maintenance" or "support" replaced "alimony," signifying a shift in thinking. Some states have also abandoned the terms "custody" and "visitation" when referring to the post-dissolution placement of children, preferring "parenting time" or "parental responsibility." The old words implied that one parent "won" control of the children and the other "lost." The new words remove the implication that one parent matters more than the other.

Those who enter domestic partnerships in Maryland would be free to say they are married, just as those who dissolve their unions in California, Florida, Connecticut and the other states with dissolutions probably say they are divorced. The state does not police people's vocabulary. It does, however, signify modern ideals through official nomenclature. For that, the state should use the language of partnership and leave marriage to religion.

Posted by Tilden Moschetti at 11:50 AM | Permalink | Comments (0)

C.A.: Clarifies Scope of Statutory TRO in Parentage Cases

By STEVEN M. ELLIS, Staff Writer

The standard restraining order issued in parentage cases prohibiting a parent from removing a child from the state without the other party’s consent or a court order does not require a parent to bring a nonresident child into the state, the Fourth District Court of Appeal ruled Friday.

Div. One held that San Diego Superior Court Judge David Oberholtzer did not err when he issued a temporary custody order allowing a Colorado woman who filed custody proceedings in California to continue living in Colorado with her child, rather than return to California, because Family Code Sec. 7700 raises no presumption that a parent residing in another state with a child at the time he or she seeks assistance of a California family court must return the child.

The issue arose after the woman, who had previously lived with the child’s father—her boyfriend—in San Diego, moved to Colorado with the child when the relationship deteriorated. One month after leaving, she filed a petition in the San Diego Superior Court to establish that the man was the child’s father, and requested that the court determine custody and visitation, and appropriate child support.

No Agreement

The parties were unable to reach an agreement as to a custody sharing plan through mediation, so Oberholtzer adopted the mediator’s recommendation that the child reside primarily with the mother. He entered a judgment of paternity establishing the man as the child’s father, and temporary custody orders allowing the child to remain in Colorado and granting the father visitation.

Oberholtzer later granted shared legal custody to the couple, awarding primary physical custody to the mother and adopting a detailed visitation schedule providing for visitation to occur in San Diego and Colorado, respectively.

The father appealed, arguing that the trial court should have required the mother to return the child to California when it issued the temporary custody order, rather than allowing them to remain in Colorado. He contended that the restraining order that automatically issues under Family Code Sec. 7700 when a petition is filed required that the child be returned to California, and that the court erred in failing to issue an order to that effect.

Trial Court Upheld

Writing for the court, Justice Cynthia Aaron rejected the man’s contention and affirmed the trial court’s decision.

“As the trial court pointed out,” she wrote, “the statute does not state that a child who is already residing in another state at the time the petition is filed must be returned to California. Rather, the provision states only that a parent may not remove the child from the state, absent written permission from the other party or an order of the court, once the petition has been filed.”

Noting that the child was not in California at the time the petition was filed, Aaron said that there was no indication that the mother had removed the child from the state unlawfully because no party had petitioned the court for an order determining custody at the time.

Although California courts have jurisdiction to make custody determinations with respect to nonresident children in certain circumstances under the Uniform Child Custody Jurisdiction and Enforcement Act, Aaron wrote that there was “no reason to believe that the Legislature intended that children living elsewhere be returned to California anytime a custody proceeding has been initiated in California.”

‘Child’s Best Interest’

She concluded that, even if the court were to accept the father’s contention that Sec. 7700 created a presumption that a parent must return a nonresident child, and that failure to do so would violate the automatic temporary restraining order, “the trial court’s first concern is the child’s best interest.”

“If the trial court has the power to permit a party to remove a child from the state after a petition has been filed…,” she wrote, “the court must have the authority to determine…that a child who has previously been removed from the state need not be returned…if doing so would not be in that child’s best interest.”

Writing that the trial court “clearly believed that” under the circumstances, Aaron concluded that the order permitting the child to remain in Colorado was warranted and that Oberholtzer had not abused his discretion.

In an unpublished portion of the opinion, she also concluded that Oberholtzer applied the correct standard in issuing his custody determination, and that he did not abuse his discretion in granting the mother custody. She also wrote that the father had waived procedural errors that he claimed deprived him of a fair hearing for failure to raise them in his opening brief.

Justices Judith L. Haller and Patricia D. Benke joined Aaron in her opinion.

The case is Sarah B. v. Floyd B., 08 S.O.S. 774.

Posted by Tilden Moschetti at 10:46 AM | Permalink | Comments (0)