Family Law
Recent Family Law Cases
FAMILY LAW (Through 01/19/25)
By: Andrew Botros, CFLS, CALS
The precise holdings in a given case are bolded. Auther’s note is italicized.
Mamer v. Weingarten
01/19/2025 CA 4/1:D084258 – Irion, J.
https://www4.courts.ca.gov/opinions/documents/D084258.PDF
In this parentage action under the Uniform Parentage Act (UPA), the Court of Appeal reversed a family court order denying reimbursement for in vitro fertilization (IVF) costs. Father had asked the family court to require his co-parent, Mother, to pay half of the IVF procedure used to conceive their child. The family court declined, reasoning it lacked authority to order Mother to repay pregnancy-related expenses incurred before she filed the parentage action. On appeal, Father argued Family Code section 7637 permitted such reimbursement. The Court of Appeal agreed with Father.
It held that section 7637, which states that “[t]he judgment or order may direct the parent to pay the reasonable expenses of the mother’s pregnancy and confinement,” authorizes courts to order payment of IVF costs even if the expenses were paid before the parentage action was filed. The Court of Appeal noted that the family code does not limit the timing of pregnancy expenses, and reading such a limitation into the statute would frustrate the legislative purpose that both parents share in supporting the child. It further noted that the under the trial court’s reading of section 7637, fathers could easily sidestep paying their share of pregnancy expenses in most paternity cases. This means denying orders for costs when they are needed most. The mother might have serious complications during an unplanned pregnancy, incurring substantial medical bills. Perhaps she cannot locate the other parent or identify him right away. If she files the parentage action only after giving birth (or after incurring significant costs), the father—under the lower court’s ruling—would never have to pay a share of these pre-petition expenses. The mother might also become pregnant through assisted reproduction (e.g., IVF) based on the father’s promises that they would be a team, only for the father to break a promise of reimbursement after the procedure is completed. Again, if she had not filed a parentage action before incurring those costs, she could not recover from him under the lower court’s approach.
The Court of Appeal also rejected the trial court’s determination that Family Code section 3951 barred Father’s request for relief. Family Code section 3951, subdivision (a), says that “[a] parent is not bound to compensate the other parent, or a relative, for the voluntary support of the parent’s child, without an agreement for compensation.” The trial court believed it barred Father’s claim because he voluntarily paid the IVF bills before the parentage action commenced. But the Court of Appeal pointed out that the second half of section 3951, subdivision (a), explicitly includes an exception: the bar to recovery applies “without an agreement for compensation.” Here, Father alleged he and Mother did have an agreement that they would share the IVF costs equally. He explained that Mother agreed to pay half, but when the bill came due, she could not or did not pay, so he fronted the entire sum. Because there was an agreement, this scenario fell within section 3951’s textual exception.
The Court of Appeal emphasized that although Family Code section 7637 expressly empowers a court to order reimbursement for pregnancy expenses, it does not mandate such reimbursement; the statute uses the permissive term “may.” Thus, the trial court retains discretion on whether to grant the request. Because the lower court had erroneously concluded it had no statutory authority to award reimbursement for pre-petition IVF costs, the Court of Appeal reversed the denial and remanded. It directed the trial court to evaluate whether to grant Father’s reimbursement request in light of factors such as the parties’ agreement to share costs, the overall reasonableness of the IVF expenses, each parent’s resources, and the policy under the UPA that both parents contribute to the child’s support. The Court of Appeal did not decide how the trial court should ultimately exercise its discretion but made clear that section 7637 permitted an award in appropriate circumstances.
In re Marriage of Goldman
01/10/2025, CA 4/1 D082021 – Dato J.
https://www4.courts.ca.gov/opinions/documents/D082021.PDF
In this partially published case, the parties argued over the correct interpretation of Family Code section 291, which states in relevant part:
“In an action to enforce a judgment for child, family, or spousal support, the defendant may raise, and the court may consider, the defense of laches only with respect to any portion of the judgment that is owed to the state.”
Wife argued that laches applies exclusively to actions brought against the State to enforce support judgments. Conversely, Husband contended that subdivisions (a) and (d) permit laches as a defense in all actions to enforce family court judgments or orders, except in cases involving enforcement of support payments where the State is not a party.
The Court of Appeal agreed with Husband that all family law judgments are subject to laches except for support judgments, unless those support are judgments owed to the state.
In re Z.H.
12/4/2024, Certified for Publication 12/31/2024, CA 2/3: B338184 – Bershon J.
https://www.courts.ca.gov/opinions/documents/B338184.PDF
In this case, K.M. (Mother) appealed a judgment declaring her minor son, Z.H., “free from the custody and control” of Mother under Family Code section 7822, which permits a court to terminate a parent’s rights upon a finding of abandonment.
Specifically, section 7822, subdivision (a)(3) provides that “[i]f one parent has left the child in the care and custody of the other parent for a period of one year without any provision for the child’s support or without communication from the parent, with the intent on the part of the parent to abandon the child, . . . the child may be declared free from the custody and control of the parent.”
On appeal, Mother did not challenge the sufficiency of evidence for abandonment. Instead, she claimed the trial court should have considered whether paternal grandmother’s proposed adoption violated any rule prohibiting two members of the same family from both holding parental status. The Court of Appeal rejected this argument, explaining that section 7822 focuses on whether the parent has abandoned the child. In that context, the trial court was not required to confirm the legality of any proposed adoption arrangement or find that Z.H. was “likely to be adopted” (as is required in certain juvenile dependency cases under Welfare and Institutions Code section 366.26). Thus, the validity of Father and C.L.’s intended coparenting adoption was not a prerequisite to terminating Mother’s parental rights under the abandonment scheme of section 7822.
Nevertheless, the Court of Appeal noted a clerical error in the final judgment. Although the trial court’s oral pronouncement explicitly stated Father would retain his rights, the standardized form judgment, through boilerplate language, inadvertently said Z.H. was freed from “all persons claiming to be the father and/or mother.” That language wrongly suggested the court had also terminated Father’s parental rights—something the record indicated the trial court did not intend. Because courts have inherent authority to correct clerical mistakes to reflect the actual judgment rendered, the Court of Appeal remanded for the trial court to amend the judgment so that it accurately terminates Mother’s rights only, preserving Father’s.
12/18/2024 CA 1/2: A169561 – Stewart, P.J.
https://www.courts.ca.gov/opinions/documents/A169561.PDF
In this case, the Court of Appeal reversed a juvenile court’s order denying a mother’s request for the juvenile court to appoint an expert to perform a bonding study under Evidence Code section 730. The juvenile court determined it could not appoint an expert under this code section because it would have been improper for the court to appoint an expert to aid mother in her own defense.
Evidence Code section 730 experts are not limited to those that may be of direct assistance to the trial court itself. Rather, trial courts, where merited, “should appoint an expert a party requests to effectively present [his or her] case.” This is compelled by the plain language of Evidence Code section 730 which authorizes the appointment of an expert where “expert evidence is or may be required by the court or any party to the action.”
11/26/2024, CA 2/6 B331558 – Cody J.
https://www.courts.ca.gov/opinions/documents/B331558.PDF
In this case, the Court of Appeal affirmed an order granting respondents’ motion to quash a petition to establish a parental relationship. Appellant C.C. had consented to terminate his parental rights over a decade earlier after donating sperm to respondents, a married lesbian couple, for in vitro fertilization. C.C. later sought presumed parent status under Family Code section 7611, subdivision (d), third parent status under section 7612, subdivision (c), and rights to custody and visitation. The trial court rejected his petition for lack of standing, concluding that the adoption terminating his parental rights was conclusive and barred him from claiming legal parentage.
C.C. argued that “there is no evidence to support a finding that he relinquished his right to enforce a legal parenting relationship,” and he claimed the 2013 amendments to the Family Code provided a path to establish multiple parentage in nontraditional families. The Court of Appeal disagreed, emphasizing that “section 8617, subdivision (a) remains unambiguous: ‘the existing parent or parents of an adopted child are, from the time of the adoption, relieved of all parental duties towards, and all responsibility for, the adopted child, and have no right over the child.’” The Court of Appeal concluded that C.C.’s decision to sign the consent to adoption was a permanent relinquishment of his parental rights. It also reasoned that “there is simply no law permitting designation as a legal parent after the termination of parental rights and a child’s adoption.”
C.C. further raised an equitable estoppel argument, claiming respondents induced him to donate sperm and consent to adoption by promising him continued contact with the child. In rejecting this argument, the Court of Appeal observed that the parties’ donor agreement explicitly provided that he would have “no paternal rights whatsoever” and that “any future contact [he] may have . . . in no way alters the effect of this agreement.” The Court of Appeal stated: “‘[W]hen a person with the capacity of reading and understanding an instrument signs it, he is . . . bound by its contents and is estopped from saying that its explicit provisions are contrary to his intentions or understanding.’”
Finally, C.C. lacked standing to seek visitation as a nonparent. The Court of Appeal recognized his substantial relationship with the child, but under Family Code section 3104, a nonparent (other than a grandparent) has no standing to initiate an action for visitation under the Family Code.
Because C.C.’s parental rights were validly terminated by the final adoption order, he could not later assert the right to legal parentage or seek visitation over respondents’ objection. Simply put, “our laws . . . do not allow him or us to ignore the consequences of a final adoption order.”
This case is almost identical to In re Jason P. (2017) 9 Cal.App.5th 1000. In that case, a sperm donor also sought presumed parent status under section 7611(d) based on post-birth conduct. The Court of Appeal ruled that section 7613(b) precluded a sperm donor from establishing parentage solely on biological grounds but allowed him to claim presumed parent status through his conduct after the child’s birth.
The dispositive distinction in C.C. v. L.B. is the adoption that already terminated the appellant’s rights. Once parental rights are terminated through adoption, no individual can claim standing to be recognized as a presumed parent.
Mercado v. Superior Court
11/25/2024, CA 4/3: G063594 – Sanchez J.
https://www.courts.ca.gov/opinions/documents/G063594M.PDF
In this case, the Court of Appeal granted a writ petition and directed the trial court to vacate its orders requiring Mother to undergo a vocational evaluation in a parentage action. The underlying dispute arose after Father requested that Mother submit to an evaluation of her employment prospects so he could attempt to impute income to her for child support purposes. The trial court ordered the evaluation under various statutory theories, but the Court of Appeal concluded there was “no statutory basis” for requiring Mother to submit to a vocational evaluation in the particular context of this parentage case.
Father first relied on Family Code section 3558, which states that a court “may require either parent to attend job training, job placement and vocational rehabilitation, and work programs,” but the Court of Appeal noted that no authority interprets section 3558 as permitting a vocational examination. Father then referenced Family Code section 4331, which authorizes a vocational examination in a marital dissolution or legal separation case “for spousal support” purposes. The appellate court emphasized that section 4331 applies only in a proceeding for dissolution of marriage or for legal separation and that “there was no pending spousal support motion” before the court. Therefore, section 4331 was inapplicable.
Father also cited Family Code section 4058, which governs the imputation of income for child support calculations. The Court of Appeal recognized that “the plain language of section 4058 does not authorize vocational evaluations,” although “legislative history indicates the Legislature intended to expand the use of vocational evaluations” in child support proceedings. Yet the Court of Appeal explained that “a party requesting another party undergo a vocational evaluation is not entitled to the evaluation just because he or she requests it in a parentage action.” Rather, “the court must engage in a best interests test” before ordering an evaluation: “The best interest test applies to the court’s consideration of whether to impute income,” and Father had not shown such an evaluation would be in the children’s best interests.
The trial court also relied on Evidence Code section 730. But the appellate court pointed out that “[e]xperts under Evidence Code section 730 are generally neutral experts appointed by the court, not retained experts like [Father’s] chosen consultant.”
Concluding “there was no statutory basis for the orders,” the Court of Appeal issued a peremptory writ ordering the trial court to vacate its orders compelling Mother to undergo the vocational examination and denying Father’s request, but “without prejudice to the court’s subsequent consideration of the issue on its own motion or by a request filed by either party.”
CHANGES TO FAMILY CODE (enacted in 2024)
By: Andrew Botros, CFLS, CALS
Here are the noteworthy changes to the Family Code passed by the legislature and signed into law by Governor Newsom over the past year. Please take special note of the effective dates.
Effective date: January 1, 2026
This law now adds the ability of parties to a dissolution of marriage or legal separation proceeding to file a joint petition for dissolution of marriage. If the parties file a “joint petition and joint summons, in a form and content approved by the Judicial Council, the joint petition shall be deemed to be served on both parties upon the filing of the joint petition with the court and both parties shall be determined to have appeared in the matter.”
If an amended petition or response is filed, the joint petition for dissolution or legal separation is revoked and the other side is required to file their own amended petition or response within 30 days.
Either party may seek discovery, as set forth in the Code of Civil Procedure, under the joint petition process.
Further, “[i]f either party files a request for order, including, but not limited to, a request for a motion to compel or other discovery motion, or request for trial setting with the court, that party shall file an amended petition or amended response, pursuant to subdivision (b), before making, or simultaneously with, the request.”
Effective date: January 1, 2025
Amends Family Code sections 3910
This law amends Family Code section 3910 to allow a court to order a support payment to be paid directly to a special needs trust. A “special needs trust” is a “trust that meets the requirements described in subparagraph (A) or (C) of paragraph (4) of subsection (d) of Section 1396p of Title 42 of the United States Code and paragraph (3) or (4) of subdivision (a) of Section 50489.9 of Title 22 of the California Code of Regulations.”
The purpose of this bill is to allow courts the explicit authority to assign child support for children with disabilities to a special needs trust, in conformity with federal law, so that the child does not risk losing SSI (“Supplemental Security Income”). Absent this authority, a child who receives child support risks having that child support counted as income against them when determining SSI eligibility.
Effective date: January 1, 2025
Amends Family Code sections 6300
This law prohibits the denial of an ex parte request for a protective order under the Domestic violence Prevention Act as long as it is “submitted on mandatory Judicial Council forms, includes all of the forms required to issue an order, and identifies the party submitting the request and the party who is the subject of the requested order.”
This law was established to address court clerks declining ex parte protective order requests due to incomplete information or minor mistakes, unnecessarily delaying the protection of an abused party.
Effective Date: January 1, 2025
Amends Family Code section 6345
This law requires the Judicial Council to, by January 1, 2025, create one or more specific forms for the purpose of requesting a modification of an existing restraining order. Its purpose is to make it easier for a party to seek a modification of a protective order, given that many victims of domestic violence find it difficult to navigate the modification process when they need additional protection.
Effective Date: January 1, 2025
Amends Family Code sections 3064 and 3100
This law requires a court, in determining whether there is a sufficient showing of immediate harm to the child to justify an ex parte custody order, to consider a parent’s illegal access to firearms and ammunition, including, but not limited to, whether a parent is prohibited from having firearms and ammunition.
It further requires a court, upon a showing of immediate harm to the child or risk that the child will be removed from the State of California, to consider whether the safety and best interest of the child requires that visitation by that parent be suspended, denied, or limited to situations in which a third person is present, including virtual visitation.
It also permits a parent to submit to the court the name of a person who the parent deems suitable to be present during visitation, which may be accepted or rejected by the court.
It also specifies that, in determining the type of visitation that is in the best interest of the child, the court shall consider the nature of the acts that led to the finding of the risk of immediate harm or immediate risk of removal.
Effective date: January 1, 2026
Amends Family Code section 6389
The Old Law
Under prior law, a court can grant an exemption for the firearm relinquishment requirement of the DVPA for those who are required to carry a firearm/ammunition as a condition of their employment.
The respondent must show that a particular firearm or ammunition is necessary as a condition of continued employment and that the current employer is unable to reassign the respondent to another position where a firearm or ammunition is unnecessary. If such an exemption is granted, the order shall provide that the firearm or ammunition shall be in the physical possession of the respondent only during scheduled work hours and during travel to and from the place of employment.
For peace officers, a court may allow the peace officer to continue to carry a firearm or ammunition if it is a condition of their employment, either on duty or off duty, if the court finds by a preponderance of the evidence that the officer does not pose a threat of harm. Prior to making this finding, the peace officer must submit to a mandatory psychological evaluation may be required to enter into counseling or other remedial treatment programs to deal with any propensity for domestic violence.
The New Law
Under the new law, it is first made clear that the court can only order an exemption to the relinquishment order if the respondent is not otherwise prohibited from owning, possessing, controlling or purchasing a firearm and ammunition under state or federal law.
If a respondent is a “sworn peace officer” (the old law did not include the word “sworn”), the court must now find by a preponderance of the evidence that 1) the peace officer’s personal safety depends on the ability to carry that specific firearm, ammunition, or firearm and ammunition outside of scheduled work hours.; and 2) The peace officer does not pose an additional threat of harm to a protected party or the public by having access to the specific firearm, ammunition, or firearm and ammunition, including whether the peace officer might use the firearm for any purpose not authorized by the statute.
If the respondent is not a peace officer but is required to carry a specific firearm, ammunition, or firearm and ammunition during scheduled work hours as a condition of continued employment, and cannot be reassigned, the court may grant an exemption if it finds by a preponderance of the evidence that the respondent does not pose an additional threat of harm to a protected party or the public by having access to the specific firearm, ammunition, or firearm and ammunition only during scheduled work hours, including whether the respondent might utilize the firearm, ammunition, or firearm and ammunition for a purpose not authorized by the statute. A psychological evaluation for a non-peace officer is optional at the court’s discretion.
The law also provides that if any exemption is granted during the pendency of a TRO and a restraining order after hearing is issued, the court is required to review and make a finding as to whether the exemption remains appropriate based on the same criteria noted above. This review and finding is to occur at the time the restraining order after hearing is issued. The court must also go through the analysis again if it renews a restraining order and that review and finding is to occur when the renewal issues.
This law also expressly authorizes a court to terminate or modify an exemption if it is necessary for the respondent, if the respondent no longer meets the requirements of the statute, or if the respondent otherwise violates the restraining order.
Effective date: January 1, 2026
Amends Family Code section 3044 and 6389
Family Code section 3044 provides that upon a finding that a party has committed domestic violence, there is a presumption against that party having sole or joint physical/legal custody of a child. Under the prior version of Family Code section 3044, one of the additional factors the court may consider in determining if the presumption against sole or physical custody has been rebutted, is whether the person has violated any firearm restrictions under Family Code section 6389. The court can now expressly consider whether the person has violated firearm restrictions in two other statutes, Code of Civil Procedure section 527.9 and Penal Code section 18120.
Effective date: January 1, 2025
Amends Family Code section 6301
This law provides that an individual who has suffered a past act or acts of abuse as defined by the DVPA need not be a resident of California to file a petition for a restraining order and authorizes a petition to be filed in any superior court in this state.
This includes, but is not limited to:
a) The county in which the petitioner resides or is temporarily located.
b) The county in which the defendant resides.
c) The county in which the offense occurred.
d) Any other court that may have jurisdiction over the parties or the subject matter of the case.
Effective date: January 1, 2025
Amends Family Code section 6306
This law requires all courts to, before a hearing on the issuance or denial of a DVPA order, to conduct a search of the Department of Justice Automated Firearms System to determine whether the subject of a proposed DVRO owns or possesses a firearm.
Effective date: January 1, 2025
Amends Family Code section 17400, Code of Civil Procedure section 397.5
This law authorizes a court to transfer jurisdiction of any proceeding under the Family Code to another county where it appears that the both parties have moved from the county rendering the original order. A court may, “when the ends of justice and the convenience of the parties would be promoted by the change, order that the proceedings be transferred to the county of residence of either party.” Prior law limited this authority to proceedings for dissolution of marriage and legal separation only.
DEPENDENCY (current through 01/18/25)
By: John Nieman
The precise holdings in a given case are bolded. Auther’s note is italicized.
In re Juan A.
11/22/24, CA 2/1 B337033
https://www.courts.ca.gov/opinions/documents/B337033.PDF
The minor appeals denial of a continuance request. Through counsel, minor requested a continuance in a post-permanency hearing (Welfare & Institutions Code (W&I) §366.3(d) and (e)). A minor’s right to be present is laid out in W&I §349. Primarily the minor clearly knew about and wanted to attend the hearing but was unable because of circumstances he could not control. The Appellate Court ruled that the only way to deny him a continuance was if it found, pursuant to W&I §349(d) that it was in the minor’s best interests to deny the continuance request. While perhaps not critical to the analysis, the Appellate court pointed out that the minor had a clear interest in the proceedings and had attended at least several past hearings. The Appellate Court also found that the error was not harmless as there was a reasonable probability of a more favorable outcome had a continuance been granted for the minor to be present. Reversed.
In re T.R..
12/5/24, CA 2/7 B329240
https://www.courts.ca.gov/opinions/documents/B329240.PDF
This is an Indian Child Welfare Act (ICWA) case. Parents lost custody to the juvenile court because of exposure to domestic violence and mental health issues. Mother appealed the jurisdictional and dispositional findings. Subsequently a W&I §366.26 was held, guardianship was chosen as the permanent plan, and Dependency Jurisdiction was dismissed. A question is whether the Juvenile Court has, post-dismissal, adequate jurisdiction to remedy the inadequate ICWA inquiry that was conducted while the case was before the trial court. Namely, post initial denial of Native American ancestry by the parents, no ICWA inquiry was made of numerous relatives who were contacted.
The Appellate Court concluded that the Juvenile Court retains jurisdiction over the Guardianship (even though dismissed). A remedy was found to be available as the mother appealed the ICWA findings pre-permanency, and the trial court could still inquire about possible Native American ancestry (as was required by the ICWA and not done). Since no other error was found, the trial courts orders were conditionally affirmed, subject to revision following a proper ICWA inquiry.
In re P.R. et al.,
12/18/24, CA 1/2 A169561
https://www.courts.ca.gov/opinions/documents/A169561.PDF
Mother appeals denial of her request towards the end of reunification services for appointment of an Evidence Code (EC) §730 expert to perform a bonding study. The purported grounds for denial were that the trial court didn’t believe it was proper to aid the mother in her defense vis EC §730, and that the request was premature (presumably anticipating that mother’s interest was to use the bonding study to defend her parental rights at some future W&I §366.26 hearing where her parental rights would be in jeopardy). The Appellate court found both of these ideas erroneous: 1) An EC §730 expert may very well be appointed to aid a party’s defense and 2) The timing of the request was not clearly untimely, but timeliness is only one factor the trial court must consider when evaluating the merits of an EC §730 request. Reversed and remanded.