Family Law Outline Updates

**ZI. Introduction** A. **"Family Law"** - [Legal definition of "family"] - "Family, in a limited sense, signifies father, mother, and children. In a more extensive sense, it comprehends all the individuals who live under the authority of another and...

**ZI. Introduction** A. **"Family Law"** - [Legal definition of "family"] - "Family, in a limited sense, signifies father, mother, and children. In a more extensive sense, it comprehends all the individuals who live under the authority of another and includes the servants of the family. It is also employed to signify all the relations who descend from a common root." \[Art. 3506.12\] - *[Limited]*: father, mother, children; descend from common root - *[Extensive]*: all individuals who live under authority of another - [Societal definition of "family" ] - Is broader than Code's language - Family is also single parents, mixed families, gay couples, etc. - [Governing rules] - Family law = state law; 10^th^ Amendment governs (reserved to states) - Family law = private law; regulating dealings btw individuals - Some federal family law - Ex: Defense of Marriage Act (DOMA); passed in 1996, unconstitutional 6/26/2015 wto permanently sever the marital relationship - Starts clock for waiting period - Parties need to live apart in such a manner that those in the *[community are aware of the separation]* - Jurisprudence *[requires spouses living in separate abodes]*; living in garage apartment is not enough for sperate and apart - REASON we want to force couples to live separate and apart so that they cool off. If they still live "under the same roof" in a way, then they woud lie and just say they've lived "separate and apart," when in fact they haven't, and this would undermine the opportunity to reconcile. Subject to manipulation. - Same reason that you can't just admit to adultery and abuse. We don't want collusive immediate divorce. - However, this worry is only legit if you believe that the waiting period actually stops people from getting divorced. - If we allow people to say they lived separate and apart without looking to their intention; then we haven't allowed the cooling off period to have any value. - *Otis v. Bahan* (p. 287): ***communication of intent*** ***enough to start separate and apart time period*** - H leaves for WWII; W and kids move in w/H's mother; W sends H letter saying wants divorce 10 days after H's deployment; 4 months later moves out of MIL's house - \*Communication is highest form of directness of intent - H argues that the date for living separate and apart begins when he got the letter. Court said no *only* because there was no evidence of the letter so not enough to prove W's intent. Court said they have to use a time period that they are sure about. - Started period at the date that W and kids moved out of H's mom's house. - *Adams v. Adams* (p. 291): ***combo of communicating to others other than spouse and filing legal documents was enough to start \"separate and apart\"*** - H in mental institution bc threated W with a machete and choked her; W never told H of intent to divorce but she did tell probation officers, sister in law, institution employees; W also filed petition that showed intent - She says the night of the incident (when she left the house and he was committed) should start the time. But she never directly communicated that to him BUT she communicated this intent to other people (probation officer, counselor, etc). - Court says time period started earlier because she filed for separation from bed and board (he gets service of her filing this) and that this filing was good enough to communicate her intention to him becuae he gets service. - *Gibbs v. Gibbs* (p. 297): subjective intent enough to demonstrate intent... Carroll says is an anomaly, outlier. - H moves to Dallas and leaves W in LA, comes back 4 or 5 times; H *decides* he wants divorce in Nov. (probs when he moved in w/another woman) but *does not tell W or anyone else.* He filed for divorce in July and to prove 6 month period, he needs November date to apply. - Court somehow agrees he formed the needed consent in Nov. - W gets screwed; could've filed fault-based but had no notice of H's intent---could've filed separation of property to protect herself; she is still in community property regime, losing half her wages and incurring half his debts - Widely criticized - all other cases require some sort of direct/indirect communication - \*Advise client to clearly show intent to start living separate and apart; need to file or draft petition for divorce and send to spouse. - 103(1) DIVORCE - **1) Living separate and apart *[prior]* to filing petition---103(1) divorce** - **1^st^**: live separate and apart for requisite period of time - w/o minor children = 6 months/180 days - w/ minor children = 1 year/365 days - **2^nd^**: file divorce petition - In petition, allege domicile, matrimonial domicile, and period at which started living separate and apart prior to filing petition. - [Procedure]: - Ordinary proceeding---file petition and serve spouse, allege living separate and apart for requisite time, verify petition, wait 15 days for D to file answer and affirmative defenses - Generally a hearing is required. Exceptions listed below. - Other procedural things\...discovery\...wait for trial....*[unless]* can get an *[exception]* - *Exception*-Default Judgment \[CCP 1701-1702\] - Both spouses must consent - File a petition and other spouse doesn't bother to respond at all. (typically doesn't happen) - *Exception*-Summary Judgment \[CCP 969\] - Both spouses must ***be represented by counsel*** - Counsel for each party file ***written joint stipulation of facts, request for judgment, and sworn verification*** - Counsel for each party ***file a proposed judgment*** containing a certification that counsel and each party agree to the terms thereof - 103 is very time consuming if exceptions do not apply---may compel ppl to pick fault-based divorce instead - Covenant marriage no-fault is 103 style - **2) Living separate and apart *[after]* filing petition---102 divorce** - **1^st^**: file divorce petition - Is time marker for living separate and apart - Can file while still living together; just cannot after - **2^nd^**: live separate and apart for requisite period of time - w/minor children = 6 months/180 days - w/o minor children = 1 year/365 days - Ask: Was there a minor child at the time of the ***rule***? - [Procedure]: - File petition and serve (w/notice) - Allege jdx and venue (either last matrimonial domicile or where either party is domiciled; cannot waive venue \[CCP 3951(a)\]) - State desire to be divorced \[13:3491 the "you are being sued for divorce" dumbass document\] - Verify petition by affidavit \[CCP 3951\] - Live separate and apart for the requisite period of time - File and serve (personal service only) "**rule to show cause**" after 6 month/1year---starts judgment of divorce - Either party can file \[*Tomeny* (p. 299)\]; if don\'t send the notice, petition is still valid - Allege service - Allege passage of time delay since service of petition - Allege continuous living separate and apart for the requisite time since service of petition - Affidavit verifying motion \[13:3492 2^nd^ you're being sued doc.\] - If nobody files the petition after the period of separate and apart -- it is eventually waived via abandonment \[CCP 3954\]: 2 years form filing it is abandoned - Present evidence at a hearing \[CCP 3956\] - Present the petition - Return on service of petition - Rule to show cause - Return on service of rule to show cause - THIRD affidavit proving again your intent to divorce - [Considerations in deciding btw 102 and 103 have to ask your client what is really important to them: finances, speed, availability of relief, etc. ] - Timing - **102** if want to **terminate community property regime early** - Termination of community property regime retroactive to filing of petition when judgment of divorce is rendered \[art. 159\] - ***Richer spouse benefits*** \~ poorer spouse wants 103 - ***If you file a 102; you file the petition now.*** - **102** to get some **incidental relief** - Art. 105 and 9:291 allows incidental relief (except custody, child support, and spousal support) when have already filed divorce petition---get injunctive relief, use/occupancy of family home, use of community property - if you go 103 youte, you can't get any of the things in Art. 105 because nothing is filed yet. - [Defense to 102/103 divorce**: Reconciliation** ] - Art. 104: the cause of action for divorce is extinguished by the reconciliation of the parties - Is D's affirmative defense ONLY in **102** divorce \[*Lemoine v. Lemoine* (p. 304)-kinda weird...\] +-----------------------------------+-----------------------------------+ | **102 DIVORCE** | **103 DIVORCE** | +===================================+===================================+ | - FILE YOUR PETITION THEN LIVE | - LIVE SEP & APART THEN FILE | | SEP & APART. | YOUR PETITION. | | | | | - Can get ALL incidental | - Can only get spousal support, | | matters in Art. 105 | support of child custody, | | | under 105 bc interspousal bar | | - Terminates community property | to suit. | | immediately when you file | | | | - Doesn't terminate community | | - Summary proceeding (faster); | property util you've lived | | no one files an answer \[only | sep. & apart & filed. | | looks to fault before | | | filing\] | - Ordinary proceeding (longer) | | | | | - If your husband has a | - If you're the poorer spouse, | | gambling problem you would | you want this because it | | want this kind because it | keeps community property and | | terminates community property | you will get half of what is | | immediately whe you file so | made in the time you live sep | | you want gather his debt | and apart. | | while you live sep and apart. | | | | - Can't go and date someone | | - Protects richer spouse | while living sep and apart | | because it terminates | because it would be grounds | | community property. | to get rid of spousal support | | | because you would be at fault | | | prior to filing the petition | | | for divorce. | +-----------------------------------+-----------------------------------+ **102 DIVORCE TIMELINE** - **Covenant Marriage** - **[Grounds for divorce]** \[9:307(A)(3)\] - **Fault-based grounds 🡪** **leads to immediate divorce** - **1) Adultery** - Same as traditional marriage (see above) - **2)** **Commission of a felony and sentence of death/imprisonment at hard labor** - Same as traditional marriage (see above) - **3) Abandonment of the matrimonial domicile for 1 year and *constantly refuses* to return** \[La. R.S. 9:295\] **without lawful cause or justification** \[*Ashworth*\] - **ONLY APPLIES IN COVENANT MARRIAGE MAKES SENSE BECAUSE YOU ARE REQUIRED TO LIVE TOGETHER.** - Covenant marriage requires spouses to live together - "***Constantly***" = repeated/multiple requests to return; need to be persistent (not just once and done) - "***Refuses***" = other party attempting to get you back; other spouse has to ask you to return - *Ashworth* (p. 311): ***lawful cause or justification*** - W catches H w/prostitute; W moves out; H moves prostitute GF into matrimonial home - H tries to claim abandonment to get out of paying spousal support---Court says no, missing constant request to return and W had a lawful cause/justification for leaving - You can't get spousal support if you're at fault. He says she's abandoned him in an attempt to keep her from getting the support. - **4) Abuse** \[9:307\] - Requires judicial finding of abuse---"the other spouse has physically or sexually abused the spouse seeking divorce or a child of one of the spouses\" - Cannot get divorce in covenant marriage for abuse after a protective order or TRO is granted 🡪 Makes TM and CM abuse standards very inconsistent - In cov marriage; even if you've gotten a protective order you still have to prove the abuse AGAIN to meet this ground for divorce. Narrower than 103(5). - No counseling requirement w/abuse \[9:307(D)\]; side-steps requirement of "all reasonable steps to preserve the marriage" bc don't want abuser in same room - **No-fault grounds** - Both are 103 style divorces---file ***after*** living separate and apart - **1)** Live separate and apart for 2 years, continuously, w/o reconciliation \[9:307(A)(5)\] - **2)** Get judgment of legal separation then live separate and apart for 1 or 1.5 years w/minor children - Abuse exception: 1 year (even if there are minor kids) - **[Grounds for legal separation]** \[9:307(B)\] - [Same 4 as fault-based in CM]: adultery, felony & sentencing abandonment, physical/sex abuse, separate & apart for 2 years - why would you want legal separation? Because you can still get interim spousal support with NO CAP. - **Habitual intemperance** - Comes from dead legal separation grounds for traditional marriage - Not a ground for divorce -- only legal separation. - Usually due to substance abuse that \"***renders the common living together insupportable***\" - **Cruel treatment** - Failure to fulfill art. 98 duties - Not a ground for divorce -- only legal separation. - Lacks definition and no cases in CM context but we have spousal support cases (is grounds for spousal support too) - \"***Renders the common living together insupportable***\" - [Relationship between legal separation and divorce] - [\*\*\*\*] remember that legal separation is ONLY a thing in covenant marriage. - Purpose of legal separation is to set up 2-step process - Also have religious, insurance, and economic reasons - If *[habitual intemperance]*, you can divorce a year later. So faster, but any other ground, it is slower to get a divorce - This is important for context of the effect on the community property regime (\$\$\$\$\$\$\$) - Community property ***terminates retroactively*** to the time of filing, and the same happens for judgment of legal separation - **Financial---Spousal support** - Delaying divorce likely to result in spouse's ability to claim alimony for longer - Weaker/poorer party wants a slow divorce; ***interim spousal support*** ends with the final divorce plus 180 days \~ longer time w/ISS which gives poorer spouse [more money] than would get w/FPS - Richer spouse doesn't want this - **Defenses to divorce action** (know all 4 and apply all 4 on exam) - "Exceptions" = defenses - **1) Reconciliation** (only defense recognized in Code) - Art. 104: cause of action for divorce is extinguished by reconciliation of the parties \[code doesn't define reconciliation so we turn to the lay definition and jurisprudence\]. - Reconciliation is a question of fact; deference is given to the trial court's determination. - Standard: manifestly erroneous. - Applies to both fault-based and no-fault divorces - Issue w/abuse---battered spouse syndrome - \*\*\*\*\* NOTE: when you meet with a clinet, you not only advice them on nwhat divorce would best suit them (102/103) but also the effects of reconciliation and its risks. - [Elements]: - ***Forgiveness/acceptance, AND*** - ***"Resumption of the life in common"*** - Looking for actions of spouses...but huge incentive to lie - Very difficult to prove and fact intensive - Hard to prove what goes on behind closed doors. - [Proof of reconciliation ] - **Old rule** for reconciliation = **sex one time**; prone to abuse and could also discourage couples getting back together \[don't want to discourage people for having tried to get back together; yet this does\] - *Millon v. Millon* (p. 317): NO reconciliation when sex not voluntary/consensual - H forced self on W saying "she wouldn't object too much at times"... - Police were called several times. - First case where there's multiple instances of sex (6) and the court finds that there's NOT reconciliation. - This case opens the door for the liberalization of sex NOT meaning reconciliation. - *Jordan v. Jordan* (p. 319): YES reconciliation bc H&W outwardly acting like a couple = resumption of the life in common - H moved back in, slept in same bed, seen in public together***[,] went to church together.*** - *Lemoine v. Lemoine* (p. 304): NO reconciliation w/sex but never moved back in - H had own apartment but never moved back into matrimonial home; moving stuff back in is highly indicative of resumption of life in common; go on 4 overnight trips together. - New case ::: (no name given) YES reconciliation. - H keeps separate apartment but has a toothbrush at wifes, buys her birthday presents. - *Rivette v. Rivette* (p. 323): YES reconciliation - H has own apartment, but brings a suitcase to matrimonial domicile and stays a few weeks at a time; multiple sex, home address on license, etc. H claims he wasn\'t trying to reconcile, just be there for the kid - He has to get his licenses renewed during this time and does NOT change the address on it. - Court says there is reconciliation but it\'s a close call - **Reconciliation hearings are rarely overturned on appeal** - Make sure client is understands the risks of reconciliation on accident - **RECONCILIATION IS AN AFFIRMATIVE DEFENSE.** - **Serves as a defense for ALL types of divroce (fault and non fault)** - Usually wont work for adultery (no LA case) - Not going to work for felony based divorce because felon is not avalibale. - SO, only way that it would work would be with abuse. - This is problematic. Comment was proposed by declined by the legislature that urged courts to look at this with particular care because of the emotions that are typically involved in divorce cases. - EX If H beats W and she doesn't file for divorce until she is out of the situation, are we going to say they reconciled and extinguish her grounds for divorce? This would be wrong but the law as it is would allow this. - *[Problem]*: spouses can act like reconciliation without actually intending to reconcile because they have monetary motives (spousal support and custody) - *[Effect of reconciliation: ]* - *Extinguishes the cause of action for divorce* - *Would have to refile if you want a divorce later* - *Extinguished all incidental matters (custody, spousal support, child support orders)* - [Range of applicability] - Reconciliation extinguishes incidental causes of action/claims for incidental relief too - **State of mind**: do not need pure intentions to reconcile! - No court has ever found no reconciliation because of a nefarious or evil purpose, [but it is a factor to put into the weighing to decide reconciliation or not] - However, when people get an unfavorable judgment on spousal support, etc, they often claim reconciliation to extinguish these incidental judgements. This defense would favor the spouse who doesn't like the responsibiliites / judgements for incidental matters if it is upheld. - *Hickman v. Hickman* (p. 331): Yes reconciliation even though W's intent was questionable... her bad state of mind didn\'t matter - W moves out and then back in. H said W moved back in because she didn\'t want to lose custody of the kids, not to reconcile. H had already gotten a temporary custody order and W wanted to circumvent it - W moving back in extinguished the divorce and the incidental matter of custody - Court noted that H wasn\'t being fooled; he took the risk and was not being deceived; he knew what she was doing by getting back with him and he let her. - Intent was at issue in this case. H got primary custody of the kids and claims that the wife only reconciled so that she could get rid of the temporary custody order. He says she doesn't *actually intent* to get back together with him. - *Tablada v. Tablada* (331): NO reconciliation. subjective intent irrelevant when other party not deceived - H asks W to reconcile same day he finds out that he would have to pay a fuck ton in spousal and child support, so that night he moved back in (lawyer had told him he woud likely pay a lot; not judgement on it yet). - "***Conditional reconciliation***" = resolutory condition of counseling and stopping adultery H agreed to but failed; so no reconciliation (his failure causes the obligation to be undone). - *Is sex sufficient? Necessary?* - *Levine*: YES reconciliation. sex is not necessary for reconciliation - H moves back in with W, but both admit no sex happened because H is fat and repulsive to W - Court finds a resumption of the life in common anyway. - Why? Because the life that the parties had prior to the divorce filing also DID NOT include having sex. - Issue: the court likely would not have ruled in this way if the couple previously had a lot of sex, filed for divorce, then "reconciled" and didn't have sex. In this case, they already didn't have sex so prob reason for court's holding. - Note on reconciliation you file for divorce for adultery; then you reconcile and your cause of action is extinguished. You would have to REFILE and meet another ground for divorce (if you wanted to use adultery he would have to cheat AGAIN). - Note on reconciliation if you file for a no-fault divorce; then you reconcile and your cause of action is extinguished; you would have to REFILE, get new judgements for all incidental matters and live separate and apart again (TIME WOULD RESTART). - **2) Mental/psychological illness** - \*ONLY applies to ***fault-based*** divorce - ***The mental illness must [cause] the behavior that constitutes the fault for illness to be a defense*** - *Courville v. Courville* (p. 341): No fault bc W's actions were caused by her mental illness - W was schizophrenic; verbal and physical provoking H; H claims cruel treatment; Court says no and W's actions excused - If it didn't work for abuse; he wouldn't be totally uable to get a divorce but he would have to get a no fault divorce and wait the requisite time period (this may be an issue in abuse cases). - *Doane v. Benenate* (p. 344): Court excuses W for kicking H out of house bc her actions stem from her schizophrenia - *Seltzer v. Seltzer* (347): W claims mental illness of being clinically depressed and should excuse her adultery; Court says no; repeated adultery is not excusable bc her depression is not the cause of the adultery - The causes for divorce (adultery, felony, and abuse) are all defensible with mental illness, but that mental illness must actually cause the fault. Highly doubtful it\'d work in most cases though - Range of applicability - **3) Connivance** (only have one case and Code says nothing about it) - *Schwartz v. Schwartz* (p352): "***if you encourage the adultery, you can\'t use that adultery for defense***" - *Connivance means if you're the encourager of a particular behavior; you can't file for divorce with this same particular behavior as the grounds for the divorce.* - H won't agree to a divorce so W sets up H in adulterous situation - EXAM: Modern application w/ connivance as a defense for adultery in swinging couples and open relationships - Probably not possible; would be problematic for a modern court to allow connivance to apply in such scandalous relationships; Art. 98 public policy implications suggest this is a no-no - If we upheld this defense for an open marriage; we would be sanctioning your article 98 duty to fidelity. So likely wouldn't happen in LA courts. - **4) Mutuality of fault** (EXAM) - Called ***recrimination*** or ***comparative rectitude*** - **ONLY applies to covenant marriages** -- "Only when there has been a complete and total breach of the marital covenant commitment may the non-breaching party seek a declaration that the marriage is no longer legally recognized" - Appears to revive recrimination - **Recrimination** - Accuser is accusing/"unclean hands" idea - Courts *used* to dismiss petition if both spouses were guilty of fault; meant a person at fault could find something minor wrong with other party and find them at fault too---created comparative rectitude - EX: if H beat W when he was drunk ad she refused to have sex with him when he was drunk. She would try and get a divorce for abuse but the court wouldn't allow her to get divorced because she was at fault to for not having sex with him. - **Comparative rectitude** - Weigh fault of parties; whoever is less at fault can get divorce/legal separation - EX: If H beats W. She refuses to have sex with him because he comes home every night drunk; she also slashes his tires, etc. this comparative determination would look to **who is more at fault?** - Turned into a pissing match so we shut it all down - NOW, a guilty party can get a divorce, so this is no longer a defense to traditional marriage divorce - CURRENT LAW - Recrimination and comparative rectitude were abolished by the 1980's. However, LA 9:272 says "only the non-breaching party may seek a declaration that the marriage is no longer legally recognized.." - Does this bring back recrimination and comparative rectitude for COVENANT MARRIAGES? - Legislature probably didn't know what they were doing when they signed this in. - This is located in the preamble to covenant marriage. - Plain language says that it relieves these concepts. **\ ** - **Divorce Jurisdiction** - ***\*\*Jurisdiction to render divorce is based on DOMICILE\*\**** - ***The way to get around full faith and credit is to determine that the granting court did NOT have jurisdiction and the judgement is not valid.*** - **Full faith and credit for another state's judgment** - Const. art. 4 sec. 1-Full Faith and Credit Clause: "Full faith and credit shall be given in each state to public acts, records, and judicial proceedings of every other state" - Public acts would mean legislation. We require courts to recognize another states legislation on divorce. - Governs legislative and judicial jdx - Requires states to recognize divorce judgment by another state as long as judgment in first state was valid - No legislation on divorce jdx requirements - **Judgment of state with domicile over [one party]** - **Jurisdiction depends on domicile ONLY.** - **\*\**As long as either spouse is domiciled in the rendering state, there will be jdx---do not need personal jdx in divorce action \*\**** - CCP 10(7): "jdx over status-court which is otherwise competent under laws of this state has jdx of following actions or proceedings only under following conditions...action for divorce, if at the time of filing, ***one or both spouses are domiciled in this state***" - *Williams I* (p. 356): Divorce is over status and only need one party in the forum - *USSC says as long as you are domiciles in the state that granted the divorce, the judgement is valid. Even if wife has no conection to NV.* - *H can't be prosecuted for bigamy if the NV judgement is valid.* - H married to W in NC; H leaves W and goes to NV; after 6 weeks gets divorce judgment for NC-W and marries his mistress; H charged w/bigamy - [Issue]: was NV divorce valid and does NC have to recognize it 🡪 Yes and yes - H entitled divorce bc of full faith and credit - **Judgment of state with domicile over [neither party]** - ***\*\*If neither party is domiciled in the state the renders the divorce there is NO valid judgment\*\**** - ***This would be the logical conclusion......*** - ***The Johnson case held difference (because of another procedural doctrine)*** - **Judgment of another country** - Full faith and credit (FFC) doesn't apply to judgments of other countries - [Comity issue]: even though not required by FFC we respect foreign judgments as a courtesy - \- When we DO enforce judgement of foreign county even though not required by FFC. - But would not apply foreign judgment if against a ***strong public policy*** - *Evrett v. Evrett*: no effect to a Dominican Republic divorce - FF&C does not compel recognition even if a party was domiciled in the foreign country. FF&C is only for American jurisdictions. - Courts have discretion to enforce these divorces but cannot be forced to - *Clark v. Clark*: no effect to Mexican divorce - Most case law declines to recognize foreign divorces like these. But the court does what it wants since it is discretionary and isn\'t actually precluded from giving FF&C to a divorce rendered in a foreign country. - **Collateral attacks on the judgment of another state** - **[Without participation] in the proceedings** - ***\*\*A party can collaterally attacks a court's finding of divorce when that party did NOT participate in the original proceeding\*\**** - ***RULE we will allow a collateral attack if one of the parties did NOT participate in the divorce rendering proceeding.*** - *Williams II*: - W challenged NV divorce in NC arguing H was not domiciled in NV when got the divorce - W allowed to do this bc she had no meaningful participation in the proceedings in NV; didn't file anything in NV or make an appearance - W can sue in NC to attack finding of NV court, but only attack on the grounds of domicile. Problem is that we lack a federally consistent definition of *domicile* (= physical residence plus intent to stay indefinitely \[art. 38\]) - [Factors to show domicile]: - Buy a residence, get drivers license changed, register to vote.. - LA: can file an art. 45 declaration to show intent - A maintained residence of 6 months in LA triggers a rebuttable presumption of domicile \[CCP 10(b)\] - *Tjaden*: ***retain old domicile until you establish a new one (collateral attack)*** - W wants divorce; goes to NV w/kids bc has family there; stays for necessary time to establish domicile and files for divorce; moves to TX soon after - Factors suggesting NV as domicile: - Takes kids with her - Stayed with family there instead of a hotel -- is key - Goes to TX instead of going back to LA - Factors saying no NV domicile: - W speaks to lawyer before leaving LA - Leaves NV the day after the divorce is rendered - Court finds W was domiciled in NV - EXAM: if client wants quick divorce, could advise them to go to different state but explain jdx and domicile risks - Do things like: register kids in school, get a home, register to vote, change drvier's license, if involving LA file Art. 45 domicile. - **[With participation] in the proceedings: *res judicata*** - *Sherrer v. Sherrer*: - H&W live in MA; W goes to FL for vacation, stays 3 months, files for divorce in FL - H's attorney enters general appearance, files answer denying all allegations of petition, including W\'s allegation domicile in FL 🡪 where H fucked up---counts as appearance (H didn't go in person but his attorney did) - H cannot collaterally attack the divorce judgment in FL because he participated in the original proceeding: *res judicata* prevents H from raising the domicile issue again. He contested it and lost once, can't do it again - FL court dismisses his answer and grants the divorce. W gets married and comes back to MA after - *Johnson*: ***res judicata prevents daughter from re-litigating same issue*** - *Res Judicata we do not allow constant relitigatino of the same matter. If you had an opportunity to participate in proceedings; then you can't re-litigate if you HAVE participated.* - Dead H's daughter wants to collaterally attack FL judgment in NY; issue is that H participated via general appearance and didn't raise issue of domicile; so daughter is precluded - Bc H had opportunity to raise domicile issue but failed to do so, daughter cannot either - Attorney denied some allegations -- but not all of them, he didn't deny domicile of W. - *Res Judicata prevents you from preventing things you did litigate or had the chance to litigation.* - He could have raised domicile issue and didn't - *Succession of Bickham*: ***res judicia still applies when party signs waiver*** - H goes to AR and gets a judgment of divorce; W does not answer or appear but files waiver entry of appearance and answer 🡪 Waiver triggers res judicata - Prevented from making a collateral attack because we only allow you to collaterally attack when you COULDN'T participate. Not when you could have and didn't (participation in any way). - ***[Rule]: If you intend to collaterally attack jurisdiction/domicile of an out-of-state divorce proceeding do not do anything in rendering state*** - **Choice of law** - Art. 3521: "a court of this state may grant a divorce or separation only for grounds provided by the laws of this state"---aka don't look into other state's laws at all - ***\*\*Choice of law = jdx for divorce cases 🡪 ONLY happens in family law\*\**** - ***Revive a distinction between legislation and jurisdiction \-- choice of law rules don't apply for divorce. A way that we could fix this would be to apply choice of law provisions to the divorce (state not applying forum law). shouldn't we do this to justify and follow FFC? We should give FCC to public acts of other states (legislation) and not only apply forum law.*** - [Problem]: spouses can **forum shop**---aka move to state with shorter wait period to get divorce judgment (is worse w/covenant marriage bc of 2 year waiting period) - [Solution, maybe]: make family law like all the other areas of law and separate choice of law and jurisdiction - Would result in applying the law of the "most interested state" -- which likely would be the state that the marriage originally occurred in! - **"Divisible" divorce doctrine** - One state renders the divorce judgment -- and then for incidental matters of divorce -- we need personal jurisdiction over D and minimum contacts \[Int'l Shoe\] - **For Incidental matters YOU NEED PJ.** - This means incidental maters of divorce can be divided in other courts around the country other than the court rendering the divorce - Carroll doesn't like this - **Venue** - Intrastate venue - art. 3491: an action for an annulment of marriage or for a divorce shall be **(1) brought in a parish where either party is domiciled, or (2) in the parish of the last matrimonial domicile"** - This is a mandatory venue proceeding - if the venue is wrong, the proceeding is void *ab inito* **\ ** G. **Incidental Relief in Divorce and Nullity Actions** - BIG 3: (1) Spousal support, (2) Child support, (3) Child custody - If your client needs any of these; you would have to fie 102 divorce or fault based divorce because you HAVE TO FILE petition for divorce to get these. - Others: \[that 105 lists\] - Injunction prohibiting spouses to dispose of community property \[9:371\] - In LA, community property is subject to equal management. EX: you and spouse have joint bank account with \$2,000 you can go and clean it out. This injunction stops them from being able to do this and you seek this with the petition for divorce. - Injunction against abuse/harassment \[9:372, 372.1\] - Retrieval of personal belongings \[9:373\] - Temporary use/occupancy of family home, community moveables and immovables \[9:374\] - Reimbursement of educational contributions \[art. 121\] - You put your spouse through med school and never got the benefits of it (\$) so you might get money for tuition paid, etc. - Judgment of separation of property \[art. 2374\] - You can stay married; but you can't get separation of property. (EX: if he has a huge gambling problem) - **1) Spousal Support** ( = alimony) *(note: EBR doesn't like SS)* - ***\*\*is discretionary, except for fault\*\**** - ***\*\*applies the same in traditional and covenant marriage\*\**** - ***Spousal Support is just a continuation of Art. 98 duty to support your spouse, even if you're not married.*** - Used to be just for wives but law changed in 1979 and is now gender neutral; but only have two cases where men seeking \[*Orr* -- said only wife being allowed to get this is unconstitutional\]. - Art. 111: "*In a proceeding for divorce or thereafter*, the court may award interim periodic support to a party or may award final periodic support to a party who is in need of support and who is free from fault prior to the filing of a proceeding to terminate the marriage in accordance with the following articles" - Read w/9:291 interspousal bar to suit 🡪 exempts BIG 3 \~ ***don't need petition for divorce to be filed first*** ***because are exempted from*** 9:291---***As long as spouses live apart they can sue each other for spousal support*** - Two types: - **A) Interim Spousal Support (ISS)** \[art. 113\] - \"Alimony pendente lite\" = alimony while suit is pending; support paid during litigation and ends upon judgment of divorce - Takes over Art. 98 duty once divorce hgas veen filed or living sep. and apart. - **Elements** of Art. 113: "[Upon motion of a party], the court [may] award a party interim spousal support based on: - i\) the [needs of that party], - ii\) the [ability of the other party to pay], any interim or final child support obligation, and - iii\) the [standard of living of the parties during the marriage]. - An award of interim spousal support shall [terminate one hundred eighty days from the rendition of a judgment of divorce], except that the award [may extend] beyond one hundred eighty days but [only for good cause] shown." - 113 is clearly discretionary with the use of the word "may". Very brief. Look at 3 things and 3 things only. Scope of inquiry is much narrower. - **i) Needs of that (claimant) party** - "Need" = determined by looking at income/earning, capital assets, debts/liabilities; debate about earning capacity - 113 used to say "insufficient income with which to support self\" 🡪 change to need shows we ***consider factors other than income alone to determine \"need\"*** for interim support - 112 includes "earning capacity of the parties" and "financial obligations of the parties" We would assume, since they were written at the same time, that is the legislature expressly included it in 112 and NOT in 113, it was on purpose and it's not included. - *Arrendell* (p. 446): ***ISS is meant to maintain the status quo*** - H&W married for 25 years; had agreement she would stay home/not work and hadn't worked for 25 years; W didn't have college degree; only had temp jobs - Trial court considered W's earning capacity and she appealed - In dicta, the court kind of says if this was a different spouse, we may consider her capacity...... - Holding: ***not appropriate under these facts to consider work history and earning capacity for interim support***. Status quo during the marriage was for her not to work - **Don't consider wortk history and earning capacity in ISS. Supports in pari materia reading of 112 and 113.** - Shows how ISS is ***fact-based*** decision w/judicial discretion - *Kirkpatrick* (p. 450): ***appropriate to consider earning capacity when have wage history*** - *Covenant marriage so no 102 divorce. W has to file rule for spousal support because they have to live sep. and apart for 2 years before filing.* - EXAM: cite for breadwinner/richer spouse - H in military and transferred to TX, W says w/kids in LA; H learns next base in FL and W doesn't want to move; H's divorce petition dismissed in TX bc improper domicile; W files petition spousal support - While H commuting to TX not living separate and apart for divorce - ***Intent*** is triggered when W files for spousal support - Considered W's earning capacity (probably bc child support was also issue in case) - Find W was educated, had her own business, and could get a job at the nearby hospital \~ ok to consider W's earning capacity - Does not overrule *Arrendell* or suggest it is wrong; just distinguishes from it - Based on how status quo has changed; wives more likely to be working/have greater earning capacity - Says it's difference becayse the wife could go and work. - **ii) Ability of the other party to pay** - Look at income and wages; entire patrimony of capital assets; and debts/liabilities - Could make plain language argumebnt of 112 and 113 reading. - ***\*\*must consider the entire financial position of the parties\*\**** - *Alexander* (p. 255): ***look at the entire financial situation to determine if payor can pay*** - Spouses had a ton of debt; W lived w/family; H paying majority of obs; Court held that H shouldn't have to pay more spousal support on top of what he was already paying - Court held that H had t pay off all of the community debts and give ISS. - Contrary to Arendell because financial obligations included in 112 not 113 so don'tlook at this. - **Court here DID consider financial obligations (debts).** - "Also any resource from which the wants of life may be supplied, and the entire financial condition of the spouse owing such obligation must be examined" - EXAM: debt incurring during ISS - Want to file 102 if other spouse increasing debts...but screws self on support - If 103, get spousal support but are liable for debts incurred - **iii) Standard of living during marriage** - Purpose of spousal support is to maintain the status quo 🡪 keeping the family the same as during the marriage - Distinction btw ISS and FPS: interim allows a transition away from each other in order to make getting back together more likely - [Limitation on ISS award ] - ***NO dollar amount limitation for ISS*** (do have for FPS) - ***112 does have a cap. 112(D). So failure to list one in 113 would mean that 113 has no cap.*** - ***However, 113 cap comes in with the time (shorter time; only pending divorce)*** - ***As a weaker economic spouse, you would want to delay litigation and get ISS as long as you can (easier to get and higher award)*** - ***SO, you would want to file 103 divorce (no-fault). If you filed 102 you've already filed so live sep and apart after.*** - ***If weaker spouse, wait until the last day to respond to discovery and avoid filing divorce to make ISS go longer.*** - ***DO have time limitation (MAX 1.5 YEARS)*** - Is new, changes applies [prospectively]!!! - [Pre-2018 revision]: terminates on the judgment of divorce [or] 180 days from judgment of divorce if there is a pending final periodic support judgment. - Encouraged playing the \"game\" of delaying final periodic support in order to get the extra 180 days - [Post-2018 (APPLY THIS)]: ***interim spousal support*** ***always lasts 180 days after judgment of divorce*** - Can extend ISS for ***good cause*** - No case actually answers/defines good cause - *Roan*: court decides against a 22 month extension of interim support for lack of good cause. - The good cause claimed: wife had 2 strokes and was pretty crippled. This arguably affects \"earning capacity\" and \"need of party\" - TC originally gave the extension because of her extra need plus the husband being a shithead and prolonging the trial (H failed to provide documents when court asked for it) - Appellate court said NO: interim spousal support is not a punishment, based on good cause (disability of the claimant is not a good cause according to Carroll) - Court said you can't do this because its not good cause. We have other methods for punishment (contempt, sanctions, etc) - In DICTA said punishment is not good cause for extending ISS but disability of a spouse may be (no case on it). - [**Fault is irrelevant** for ISS ] - Adulterers and murderers can get ISS - "Free from fault" in art. 111 only applies to FPS - Drafting of article; modifiers; poor drafting. Purpose is to maintain status quo so we don't consider fault. - **B) Final Periodic Support (FPS)** \[art. 112\] - "Permanent alimony"---is rarely awarded today - Art. 112: "When a spouse has [not been at fault prior to the filing] of a petition for divorce and is in need of support, based on the needs of that party and the ability of the other party to pay, that spouse may be awarded final periodic support in accordance with Paragraph B of this Article." - Seen as way to punish or award damages following a marriage. But now that no-fault divorce is so popular, this rationale is dated too - Fundamental question as to why we even have FPS. Why is the duty not on the parents, state, etc? Other states have rehabilitation to pay paying for them to get educated, jobs, etc. - LA still has a wage gap (between men and women) so that's why LA Leg. has declined it. - **Elements**: - **i) Need (112 A)** - See above - **ii) Ability to pay (112 A)** - See above - **iii) Other relevant factors enumerated (9 considerations from *Loycano*)** - **Historically from LA Jurisprudence but also some new ones (B(9)).** - **1. Income, means (liquidity) of parties** - **112 B mandatory that the court consider these.** - Explicit authority to look at parties capital assets - *Sonfield* (479): don't consider \$92k in house W living in bc lacks liquidity; W would have to sell house to support self and when that money runs out will have another support suit - *Liquidity is important 90K would run out.* - *EX: 401K is not liquid. Court would probably not allow FPS to end based on 401K funds.* - *H filed to end FPS because much less ability to pay and wife has money in the house.* - *Chatelain* (not in new book): W sold house to get \$\$; H arguing for reduction in FPS; court says no bc W didn't need increase in FPS - *If selling it is going to be "marshelling resources" then not going to terminate FPS. But if selling it just gives you extra money, then will weigh against you.* - **2. Financial obligations** - Includes attorney's fees! - Includes any interim spousal allowance or final child support obligation. - **3. Earning capacity** - Present ability of both parties - **4. Effect of child custody on earning capacity** - Child custody limits ability to work thus reducing earning capacity - Has a double counting effect w/child support and child custody - Doesn't really matter because child support awards are so low. - Doesn't mention anything about age. - **5. Time needed for claimant to acquire education, training, or employment** - ***\*\*Not all FPS awards are forever; can be for a term\*\**** - ***\*\*Amount AND duration are w/in court's discretion\*\**** - *Arnold* (482): court holds that 112 allows for term FPS; here \$300 for 48 months - "Rehabilitative alimony"---argument that this makes FPS irrelevant - Even though we go rid of "lump sum" alimony and language says permanent WE CAN set term on FPS. - *Vincent* (486): term FPS is permissible; \$3k for 5 years - *Trial court grants FPS for 5 months, 7K lowered to 5K.* - *Noo question of WHY wife needs only 5 years (no mention of education, training, etc) Courts can just make up a period in setting a term in FPS.* - **6. Health, age of both parties** - Illness, disability, age make difficult as to whether payee can get job - *Arrendell*: W in 60s - *Roan*: W had 2 strokes - **7. Duration of marriage** - **Arendell -- 20+ year marriage; her dependency was great on ex-husband. Vincent -- married for 14 years and only 7K award.** - The longer the marriage the greater the dependance - Made sense when we only had fault based divorces. Now, doesn't really make sense with punishment avoidance. - Art. 112 cmt d: "affords the court a means of assessing a spouse's ***habituation to dependency*** during the marriage impairing their earning capacity" - **8. Tax consequences to both or either party** - Spousal support used to have tax consequences but ***now is tax neutral*** - Pre-2019 recipient of spousal support was taxed as income.l Now it's taxed neutral. Likely have to have a CPA and expert witness because judge won't know anything about tax. - Now there is no automatic rule on taxes on spousal support. - **9. Domestic violence** - See 112(C) -- of anyone in the home. - Are presumed to be entitled to spousal support re: domestic violence and any fault-based divorce - Reason if they know they can get support; they may be more likely to leave / be able to get out. - No definition fo what domestic violence is... do we consider emotional? Unknown. - Award ***MAY EXCEED 1/3 of obligor's net income*** - LIST is just illustrative---court may consider ANY relevant factors -- court "may consider.... INCLUDING" - [112 (C) Presumption: ] - In 112 C you're given a presumption of receiving spousal support ig you got a fault based fivorce. - Started with domestic violence but now expended to ALL FAULT based divorces. - Also applies if you are a victim of domestic abuse and DIDN't get a fault based divorce (didn't prove the domesrtic violence in the divorce proceeding) and you can now prove the DV in the FPS proceeding. - To rebut: you must show that a factor is not met. (need or ability to pay) - [Limitation on FPS award] - ***Sum awarded shall NOT exceed 1/3 obligor's/payor's net income*** \[112(C)\] - Duration = meant to be permanent; but terms ok too - **Relevant of Fault** - ***\*\*Claimant must be free from fault to get FPS\*\**** - Art. 111's "freedom from fault prior to a proceeding for divorce" - ***Fault for spousal support purposes is ONLY pre-filing*** - Hypo: Dr. H tells W leaving her; W files petition for **102** divorce to drag out ISS; live separate and apart for 10 months. W starts dating; H sends PI to get pic if W and bf. H claims adultery; so W not entitled to FPS - As long as W doesn't commit adultery before filing 102 petition she's good - If 103, no good - ***\*Filing for divorce is essentially a license to commit fault for currently fault-free claimant*** - EXAM: if client wants to date someone and get divorce, keep this in mind - 102 divorce why? So she can get IPS longer with no cap. Then 10 months later H reconveines for fault based divorce. He can get judgement of divorce based on fault because in those months theyre live sep and apart, they're still married. - Legislature didn't want to apply comparative rectitude because it DOESN'T WORK. So now they've added "free from fault prior to filing" - H could still get a fault based divorce but shes entitled to spousal support. - [Fault-based grounds for FPS]: (1) adultery; (2) conviction of felony and sentence to hard labor or death; (3) cruel treatment or habitual intemperance which renders the common life insupportable; (4) public defamation; (5) abandonment; (6) attempt against the life of the spouse; (7) being charged with a felony and having fled from justice; (8) intentional nonsupport of a spouse who is in destitute or necessitous circumstances. \[these were grounds for legal sep. now in Art. 111 cmt. C\] - *Allen*: standard for (3) cruel treatment = ***fault must be serious activity that causes the marriage's dissolution*** - Petty arguments, nagging, etc. not enough - Some kind of fault that would be been a ground for legal sep. - *Mathews*: H argues fault that W smokes weed. Could fall under "habitual intemperance" but court says NO. H knew W smoked weed before marriage, and there was no evidence that W was not performing her duties. - Again, we need serious fault that led to the breakup of the marriage (Allen) - Look back to Cauthron. - [Burden of proof on fault]: - Claimant usually bears burden of proving fault and also has to be free from fault. - [EXCEPTION]: Burden shifts to payor if the divorce was done on a fault-based grounds (adultery-*Lagars*) - Art. 112(c): all fault-based divorce triggers *Lagars* exception and shifts burden to payor to prove fault first; claimant does not have to make a prima facie case - *Hutson* (p 512): Claimant bears burden to prove freedom from fault - *Really hard to prove absence of fault. ITS STUPID. Here she got neighbors, sister, etc to show that she was a good wife.* - Character evidence is key - here the claimant brought friends and family - Once claimant makes prima facie case, obligor can rebut and prove fault - H put on evidence from his son, daughter, that she's mean, nagging, etc but this wasn't enough to rebut wifes claim of GF. - Proving a negative is difficult. What we should do is presume it and allow the payor to rebut it (but we don't). - *Lagars* (517): In adultery and abuse divorces, it is understandable that reasonable cruel treatment would happen between spouses (yelling at cheating spouse) - So, in adultery divorce, claimant gets presumption of freedom from fault and initial burden is on obligor - H files no fault divorce. She reconviences for fault based in adultery. He claims cruel treatment. Usually W would have to prove her no fault but this sidnd't happen and instead made presumption. - **When claimant gets divorce based on adultery; claimant is presumed to be free from fault and payor / adulterer bears initial BOP\>** - EXAM: this is a big incentive for fault-based divorce for your client if they might have to pay a lot of FPS - **Modification of award** - Need a ***material change in circumstances*** of either party to modify either ISS or FPS \[art. 114\] (same with child support) - Material change in circumstances 🡪 need and ability to pay - [Of obligor/payor]: - *Remarriage* not enough bc is a *voluntary undertaking* - *Mitchell*: wanting to retire is a voluntary act; does not amount to a material change - [Of obligee/payee]: - *Remarriage* automatically *extinguishes* spousal support obligation - Change in employment, remarriage of obligee spouse, surprise child, etc. might be a sufficient material change - SS obligation ends if obligee lives with another person of opposite sex in manner of married persons (having sex) but requires a judicial determination - Art. 115: obligation of all SS is extinguished if: - Obligee remarries - Death of either party - Obligee cohabitation "in the manner of married persons" (having sex) - Used to day "open concubinage" but only applied to heterosexual couples; basically cheating out in the open/not trying to hide it - *Olsen*: sex not required for cohabitation; sleeping in same bed is enough - **Judicial modification of FPS** - Can be extinguished altogether if: - Term of SS set by court runs out \[*Arnold*, *Vincent*\] - Remarriage of the obligee, death of either party, judicial determination of cohabitation - Court finds a material change in circumstances - Authentic act duly acknowledged by the parties - \*\*Passage of a ***preemptive period*** of ***3 years from judgment***\*\* (cannot be interrupted) - Must claim FPS within 3 years of divorce - [Preemption runs from the latest of the following]: (1) the day judgment of divorce signed, (2) the day a judgment terminating a previous judgment of spousal support is signed if the previous judgment was signed either before the signing of judgment of divorce or 3 years after, (3) the day of the last payment made when the spousal support was paid voluntarily, (4) no more than three years has elapsed between payments - ***Prescriptive period*** for action to make executory ***arrearages*** (= SS money due that has not been paid) is ***5 years*** \[3497.1\] - Interrupt prescription by making payment/acknowledging debt - **Contractual modification of right** \[art. 116\]: [form requirements]: authentic act notarized w/2 witnesses or under private signature duly acknowledged by obligee - ***You CAN contract to modify FPS***; cannot contract to modify duties - *Holiday*: a ***waiver*** of **ISS** is a ***nullity***; cannot contract around art. 98 duty of support - \~ ***ISS is an extension of duty of support***! - *McAlpine* (not in new book): can K to modify FPS bc has no relation to art. 98 duties - *Says holiday is still good law.* - Spouses try to modify FSP by K/prenup: "if parties married for less than 6 years, W gets sum of \$25k on divorce; if married more than 6 years, W gets \$50k on divorce 'regardless of her fault'" - 🡪 could violate public policy bc owe duty of fidelity - NO time/amounts set and no lump sum allowed (lump sum could be greater than 1/3 H's net income) - Court allows modifications to FPS like this - Different from contracting around interim support because the art. 98 support duty doesn\'t extend FPS - Community property context: we allow wives to agree to waive that, so we should allow wives to wave FPS as well. - Also different from interim support because FPS is forever - interim is just an extension of art. 98. - Be careful: \"regardless of spouses fault\" - cases after McAlpine don\'t want you to waive a duty of art. 98. An agreement that says W can get support even if she committed adultery should be struck because it is circumventing art. 98. - ***Modification of FPS doesn\'t work if it interferes with art. 98 duties.*** - ***CAN be modified or waived in prenup or post-divorce***; but not if it interferes w/art. 98 duties - Art. 116: the obligation of final spousal support may be modified, waived, or extinguished by judgment of a court or by authentic act or act under private signature acknowledged by the obligee - Ex: "excusing adultery"--- if a waiver touches anything regarding fault/adultery/support, you violate art. 98 and the whole thing is null - **2) Child Custody** - 2 kinds: - 1\) **Legal custody**---decision-making authority - 2\) **Physical custody**---physical care/control of child - Whether custody sued for during marriage, after petition for divorce, or after judgment of divorce is rendered, all have same standard \[arts. 131-135 apply\] - **Initial custody determination 🡪 "*best interest of the child*"** - Art. 131: \"in a proceeding for a divorce or thereafter, the court shall award custody of a child [in accordance with the *best interests of the child*]\" - Applies to married and unmarried parents - Is an exception to 9:291, CAN sue spouse for child custody as long as are living separate and apart - Court has wide discretion; reverse for abuse of discretion - Goal is to create stability/preserve status quo and discourage constant change - Art. 134: illustrative factors to determine best interest that courts MUST consider (along w/"all relevant factors") - [Love, affection, and other emotional ties ] - Intended to replace \"tender years doctrine\" that favored the mother; moms get custody 98.8% of the time - Now recognize that mothers aren\'t always the \"better\" parent - [Capacity & Disposition of each parent to give love, affection, spiritual guidance, and continue education, rearing ] - 1^st^: capacity to give love/etc. now - Looks to the character of each parent, rather than the current giving - 2^nd^: to continue education/etc. in future - Shows how favors maintaining the status quo - [Capacity & disposition to provide food, clothing, medical care, & other material needs ] - Always ***favors the wealthier parent*** - [Continuity of stable, adequate environment ] - Looking at kid's actual environment: home, school, social - [Permanence as a family unit, of an existing or proposed custodial home ] - Stability of familial relationships - Considers things that if mom brings her boyfriend(s) home/living w/boyfriend - Hard to determine w/unmarried parents - [\"Moral Fitness\" of each party insofar as it "affects the welfare of the child"] - Looks for alcohol/substance abuse, relationships with abusive partners, sexual activity of each parent, etc. - To affect kid's welfare need knowledge by kid - *Scott v. Scott*: Uses this element to make dad the domiciliary parent because mom has a lesbian relationship - so her moral fitness is not up to par. - *Weaver v. Weaver*: dad gets primary custody because mom has had 7 boyfriends in 8 years that have spent the night in the kids presence - [Mental & Physical health of each parent] - Relates to the \"battered spouse syndrome\" - avoid abuse experience affecting your custody - \"Mental & physical health\" is VERY broad - Mental: bipolar, depression, etc. - Physical: wellbeing of each party - *Cain v. Cain*: Dad loses custody because he is crazy/bipolar - 2018 Domestic violence change: - "Evidence that an abused parent suffers from effects of past abuse by other parent shall not be grounds of denying that parent custody" - Cannot use Rx for past actions that caused anxiety against that parent - [Home, School, and Community History of the Child ] - Will a big move hurt the child? Look at everything - \"home history\" - what happened to the child in the past - Ex: child abused by male figures, child might not be comfortable around dad alone even if dad is a damn good dad - [Reasonable preference of the child, if the child is deemed \"able to express a reasonable preference\" ] - Puts kids in traumatic position but cannot get rid of this factor bc sometimes it\'s the best evidence we have - So advise clients not to drag kids into custody battles - Court has to find that child is of ***sufficient age*** to express a ***preference*** of which parent they prefer - Preference must be reasonable - *Cain*: kids want mom because dad makes them read medical textbooks - Carroll ex: kids want dad because he lets them eat more poptarts = NOT reasonable preference - If one parent is abusive then not reasonable that child would want to live with that parent. - No bright line rule for age - Usually above 5 to 8 years old if giving good reasons - Georgia says over 14 you have to listen to child. Not so in LA. - [Willingness & ability of each parent to facilitate close and continuing relationship with other parent and family---\"Friendly parent provision\"] - Important idea kids need both parents and don't lead to hear parents talk shit about each other. - We favor the parent who recognizes this importance and encourages the child to have relationship with other parent. - Friendlier parent gets custody EXCEPT when objectively substantive evidence exists to create a fear that the other parent will abuse kid if there is a relationship with the other parent - 2018 Domestic violence change: - Exception to willingness and ability Victim of abuse doesn\'t need to be friendly - [Physical distance between residences of parents ] - Joint custody is harder the farther apart parents are - *Evans*: can't put a 4 year old on a plane every week \[page 481\] - [Responsibility and care previously exercised by each party] - About fostering stability based on what was done in past - Isn't exactly fair to parent that has never had custody but is still a factor - Looks at who attends to kids needs - Ex dads doing shift work will impact custodial arrangement. - Favors the stay at home parent. - 1993 cmt i: evaluated by identifying which parent had primary responsibility during the marriage for: (1) prepping meals for the kid; (2) bathing and dressing kid; (3) purchasing/cleaning clothes; (4) providing medical care; (5) arranging social interaction after school; (6) arranging babysitting; (7) putting the kid to sleep at night; (8) disciplining child/potty training; (9) obtaining education for kid; (10) teaching elementary skills to kid. - [Potential for Child to be abused ] - Kids Code 603: PRIMARY FACTOR - Carroll doesn\'t like the \"primary factor\" bit because we don\'t know how to weigh it with the others - Issue that primary factor creates we don't know how judge should weigh this factor compared to the other factors. - "potential" a "guess" based on facts and circumstances. - Ex mom has abused dad, more likely she would abuse kids as well. - Ex: dad may abuse, but momma is literally on crack - [History of substance abuse, violence, and criminal activity] - 2019 new rule; added bc seriousness of domestic violence - \+ any other relevant factors - "any other relevant factors" ex: transportation / exchanging of child; mom's immigration status; child care assistance (grandparents? Babysitters?) - NEW art. 134(B) (Carroll says is garbage) - If the **[Post-Separation Family violence relief act]** applies (9:362): there is a ***presumption of sole custody in the non- abuser and supervised visitation for abuser*** - ***No visitation if sex abuser*** - Answer for cases where parties failed to *specifically plead* 9:362 so abusers were getting more than they should be - Whole point of this new section is that abused parties don't have to specifically plead 9:362 to get the presumption - **Legislative Order of Preference** (agreement, joint, sole) **MANDATORY!** - Court required to render custody agreement in accordance with parental agreement. - **A) Parental agreement on custody** \[art.