New Family Code Section Reopens Post-judgment Discovery in Family Law Proceedings

Last year the Family Law world was thrown for a loop–new legal authority in the form of a court case (Marriage of Boblitt) found that unless there was an agreement from the opposing side or a court order allowing the reopening of discovery, there was no right to post-judgment discovery.

“Discovery” is the ability to force production of documents, answers to questions, etc. to both explore legal claims and to prove them. In Family Law, many issues survive a trial or a mutually-agreeable Judgment: e.g., spousal support, child custody, child support, enforcement of property divisions, orders relating to pensions, etc. In most cases to effectively assess or litigate these issues “discovery” is a must.

In my opinion, the Boblitt case threw up an unreasonable obstacle to post-Judgment discovery, as it is often difficult to obtain the opposing party’s consent to reopen discovery, and expensive and time consuming (as well as uncertain as to the result) to obtain the court’s approval.

Fortunately, effective January 1, 2015, Governor Jerry Brown signed into law emergency legislation which introduced a new Family Code Section, Section 218.

Under the newly enacted Family Code Section 218, discovery will reopen automatically upon the filing of a post-judgment motion as to the issues raised in that motion.

Exactly how this new Family Code section will be interpreted by the Courts and its overall effect on post-judgment family law matters remains to be seen. At Divorce Helpline, our consultants and mediators can help you navigate the complexities of discovery, and help you obtain the documents and information you need to successfully mediate, or litigate, your case.

The Basic Elements of a Custody Evaluation in California

As we continue to discuss the Child Custody Evaluation, it is important to discuss the impact of the Child Custody Evaluation on your family life, and conversely the impact your family life can have on the ongoing Child Custody Evaluation.

Basic Elements of the Evaluation

An evaluation involves collecting, managing, and analyzing a large quantity of information about the family. A private professional will often spend at least 25 to 50 hours on interviews, testing, and other data collection, spread out over a long period of time, before writing the report and formulating the final recommendations.

While each evaluator has an individual method, procedure, and style, all evaluations usually include a number of basic elements. The basic elements of a Child Custody Evaluation include the following:

  • Individual interviews of each parent;
  • Interviews of each child;
  • Interviews of each child with each parent;
  • Home visit to each parent’s home;
  • Review of various documents submitted by counsel and each parent;
  • Interviews of collateral contacts in the community proposed by each parent or as requested by the evaluator; and
  • Psychological testing of parents and children.

Your Ongoing Family Life Influences Case Throughout Evaluation Process

The evaluation is a study of the family, focused both on past history and relationships and the ongoing lives of the parents and children over a period of several weeks or months. See Fam C §§3110-3118.

Often events that occur during the evaluation become material for the evaluator’s investigation, and guidance from an attorney or other involved professionals (such as your therapist) will help handle the situation appropriately.

You Will Be Placed Under Intense Scrutiny for a Prolonged Time Period

A Child Custody Evaluation can frequently take up to 6 months from the time the evaluator is formally appointed until the report is issued. During that time, you will be placed under intense scrutiny and held to the standard of good parenting. You may feel this standard is too high or unreasonable when others in the community who are not involved in a custody case may parent their children in questionable ways without consequence. You will be experiencing life under a microscope and must understand the importance of exercising good judgment at all times despite the intrusion of the evaluation in his or her family’s life.

At Divorce Helpline we can coach you through the intricasies of the Child Custody Evaluation. We also work with well-known California Child Custody Evaluators and routinely arrange and manage friendly Child Custody Evaluations for our Divorce Helpline clients who would benefit from the process.

Custody Evaluations : A Common, But Expensive Tool, in Custody Litigation

A child custody evaluation is a structured investigation of parents and children by a mental health professional, resulting in a written report about the family and recommendations for a custody and parenting plan as part of a divorce.

(Fam C §§3110-3118; Cal Rules of Ct 5.210(c)(2)). Judges order evaluations to obtain a neutral mental health professional’s assessment of the family, each parent’s capacity to parent, and the children’s needs and capabilities.

“Child Custody Evaluations” are occurring more and more frequently in recent years in Family Court proceedings and even mediations. They have evolved as a legal and psychological tool: where in prior years they were primarily ordered by a court in high conflict custody cases, now they are also commenced by friendly agreement of parents who want a comprehensive child custody expert’s opinion on the parenting plan in the best interest of their children.

There is no process more critical to the custody case than the custody evaluation. Judges usually rely heavily on the evaluator’s opinions and often adopt the evaluator’s recommendations with few or no changes.

Although a trial following the evaluation may sometimes result in a wholesale shift from the evaluator’s recommendations, more often than not it will modify the recommendations in certain respects but not reject them outright.

In a subsequent blog post I will be talking about different aspects of child custody evaluations, their costs, pitfalls, and advantages.

Finalize Your Divorce in 2015

Filing Deadline is June 30, 2015

The minimum amount of time it takes for a divorce to finalize a divorce in California is six months from the date that the Petition is served on the Respondent. Serving the Petition gives formal legal notice to your spouse that your divorce papers have been filed with the court. If you wish to be divorced by the end of this year, you will need to have completed this step by June 30, 2015.

You will have to have met the residency requirements, which require one of you to have lived in California for at least six months. You also need to have lived for at least three months in the county where you are filing for divorce.

For tax reasons, the June 30th deadline is very important to many people. Your tax filing status is determined primarily by your marital status on the last day of the tax year, December 31. Being able to file as “single” or “head of household” may save you money in state or federal taxes. You can learn more about tax implications of your marital status in this article.

In other instances, the divorce process may have stalled, and having a deadline with concrete implications may provide the impetus to move forward.

If you hope to finalize your divorce by the end of the year, and you have not yet filed and served your Petition on your spouse, we urge you to contact us immediately. We can help you understand the steps you need to take in order to meet the June 30 deadline. Call Divorce Helpline at 1-800-359-7004.

Are the agreements reached in mediation binding?

Will they be accepted by the court?

Attorney Hamid NaraghiYes. Once you and your spouse reach an agreement through our mediation process, we will put that agreement into the legal format that will make it acceptable to the court. This properly formatted marital settlement agreement is just as binding as one made by a family law judge.

Is using a Private Judge more expensive than going through the court system?

Attorney William E. WoodcockSurprisingly, working with a private judge to resolve your issues and finalize your divorce can be relatively inexpensive; keeping costs in the neighborhood of hundreds dollars as opposed to the thousands of dollars. It really depends on your personal situation and whether your purpose for using a private judge is to speed up the processing of your documents with the courts, or whether you need the private judge to hold hearings and trials. Please contact Divorce Helpline and we can consult with you to give specific price information.

How Do I Prepare for Mediation?

Attorney Hamid NaraghiIt depends. If you have specific issues that you need to address in mediation such as spousal support or child custody, we will advise you on the documents you should bring with you. If you are mediating other issues related to finances, you will want to gather any documentation related to your assets, debts and personal finances. We can discuss with you ahead of time what items may be beneficial to bring to your mediation session.

Do I have to have a QDRO if my spouse and I are splitting a pension or retirement account?

Attorney Allison HardinIf a pension or retirement account is being divided or reallocated in a divorce, then yes, you need a QDRO. However, Divorce Helpline attorneys can help people avoid QDROs through other channels. One example would be a buyout of the account by one party or an exchange of one asset for another. If someone has an IRA and a 401K, it may be possible to do an IRA to IRA transfer incident to the divorce, thereby avoiding the need for a QDRO.

Can using a private judge keep my divorce documents confidential?

Attorney William E. WoodcockMaybe. In some cases, using a private judge may allow you to keep information about your divorce agreement out of the public record, including the details of who got what, who has custody of the children, who is paying support and how much, etc. With more courts progressing to digital records that can be searched online, the idea of public records with the details of divorce agreements being easily accessible is a growing concern.

Whether your agreement can be kept out of the public record depends in large part on the county in which your divorce is filed (not necessarily where you currently live) and whether or not that jurisdiction allows for certain divorce documents to remain private. We have helped many people, including celebrities, keep the details of a divorce private by strategically selecting the court in which they file for divorce. If you are at all interested in this option, consult with an attorney at Divorce Helpline to find out if options are available to you.