Family Law

In California custody cases, a parent's history of abuse has significant legal implications, as the court's primary concern is the best interests of the child. Under § 3011. Factors considered in determining best interest of child, the court must consider any history of abuse by a parent seeking custody or visitation against the child, the other parent, or other individuals specified in the statute. Abuse against a child includes "child abuse and neglect" as defined in § 11165.6. “Child abuse or neglect”, and abuse against others is defined under § 6203. “Abuse”. The court may require independent corroboration of abuse allegations, such as reports from law enforcement, child protective services, or medical facilities, before considering them § 3011. Factors considered in determining best interest of child, In re Marriage of C.D. & G.D., 95 Cal. App. 5th 378, § 33.07 Statutory Standards Governing Custody Orders.

If a parent is found to have a history of abuse, the court may impose restrictions on custody or visitation to protect the child's health, safety, and welfare. For example, § 3118. Evaluation of child abuse allegation in contested proceeding for child custody or visitation allows the court to order evaluations or investigations in cases involving serious allegations of child sexual abuse and to issue temporary orders limiting or suspending visitation with the accused parent if necessary to ensure the child's safety In re Marriage of C.D. & G.D., 95 Cal. App. 5th 378, § 3118. Evaluation of child abuse allegation in contested proceeding for child custody or visitation. Additionally, § 3030. Persons not entitled to custody or unsupervised visitation; Determination of risk; Child support paid through local agency; Confidentiality prohibits granting custody or unsupervised visitation to a parent convicted of certain crimes, such as sexual offenses or first-degree murder of the other parent, unless the court finds no risk to the child § 3030. Persons not entitled to custody or unsupervised visitation; Determination of risk; Child support paid through local agency; Confidentiality.

The court also considers the parent's current circumstances and response to past abuse. A history of abuse alone does not automatically justify removing a child from a parent's custody. The court must determine whether the child would face substantial danger if allowed to remain in the parent's custody, taking into account the parent's efforts to address the conditions that led to the abuse In re M.V., 78 Cal. App. 5th 944, In re I.R., 61 Cal. App. 5th 510. Furthermore, the court must document its reasoning when granting custody or visitation to a parent with a history of abuse, ensuring that the decision aligns with the child's best interests and safety § 33.07 Statutory Standards Governing Custody Orders, 8.09 The “Best Interest” Standard for Child Custody and Visitation.

"The information contained here is only for educational purposes. This does not constitute legal advice, or any attorney-client representation. You should seek legal advice from your attorney or consider having us represent your case."

In California, primary parental rights in a divorce are determined based on the "best interests of the child" standard. This principle is codified in § 3010. Right of parent to custody of child, which provides that both parents are equally entitled to custody of their child unless one parent is deceased, unable, or unwilling to take custody, or has abandoned the child § 3010. Right of parent to custody of child, § 100.20 Parental Right to Custody. The court does not favor one parent over the other based on gender, as fathers and mothers have equal custody rights under the law In re Marriage of Carney, 24 Cal. 3d 725, Speelman v. Superior Court, 152 Cal. App. 3d 124.

The "best interests of the child" standard considers various factors, including the child's health, safety, and welfare, as well as the nature and amount of contact with both parents. Courts also aim to ensure frequent and continuing contact with both parents unless such contact would be detrimental to the child § 3020. Legislative findings and declarations§ 3020. Legislative findings and declarations, § 33.02 Parents’ Right to Custody of Child. In cases where one parent has been the primary caregiver or has had a greater level of involvement in the child's life, courts may consider this in determining custody arrangements, as seen in In re Marriage of Bryant In re Marriage of LaMusga, 32 Cal. 4th 1072.

Ultimately, the court has broad discretion in making custody determinations, and its decisions are guided by the specific circumstances of each case, always prioritizing the child's best interests § 33.02 Parents’ Right to Custody of Child, Bartold v. Bartold, 155 Cal. App. 2d 251.

"The information contained here is only for educational purposes. This does not constitute legal advice, or any attorney-client representation. You should seek legal advice from your attorney or consider having us represent your case."

If a party intentionally withholds information in the Preliminary Declaration of Disclosure during California divorce proceedings, several legal remedies are available under California law.

First, under § 2107. Remedies for noncompliance; Setting aside judgment; Waiver for good cause, a complying party—defined as a party who has served their preliminary or final declaration of disclosure—may request the court to compel the noncomplying party to provide the required disclosures. If the noncomplying party fails to comply, the court may impose sanctions, including monetary sanctions, to deter such conduct. Additionally, the court may preclude the noncomplying party from presenting evidence on issues that should have been disclosed § 2107. Remedies for noncompliance; Setting aside judgment; Waiver for good cause, In re Marriage of Fong, 193 Cal. App. 4th 278.

Second, intentional nondisclosure may constitute perjury if the declaration is executed under penalty of perjury. Perjury in the Preliminary Declaration of Disclosure can be grounds for setting aside the judgment under Chapter 10 of the Family Code (commencing with Section 2120). This remedy is available in addition to other civil or criminal remedies for perjury In re Marriage of McLaughlin, 82 Cal. App. 4th 327, § 2104. Preliminary declaration of disclosure; Income and expense declaration; Manner of service, BVII.01 Sample Notice.

Third, under Family Code § 271, the court may impose attorney’s fees and costs as sanctions if the nondisclosure frustrates the policy of promoting settlement and cooperation in marital dissolution proceedings. This remedy does not require proof of injury to the other party and can be imposed during the ongoing proceedings In re Marriage of Feldman, 153 Cal. App. 4th 1470.

Finally, if the nondisclosure involves a breach of fiduciary duty, remedies under § 1101. Remedies for breach of fiduciary duty between spouses may apply. These remedies include awarding the injured party 50% to 100% of the undisclosed asset's value, depending on the circumstances, as well as attorney’s fees and court costs § 1101. Remedies for breach of fiduciary duty between spouses.

In summary, the legal remedies for intentional nondisclosure in the Preliminary Declaration of Disclosure include monetary sanctions, setting aside the judgment, attorney’s fees, and remedies for breach of fiduciary duty, depending on the specific facts and circumstances of the case In re Marriage of Fong, 193 Cal. App. 4th 278, In re Marriage of McLaughlin, 82 Cal. App. 4th 327, In re Marriage of Feldman, 153 Cal. App. 4th 1470, § 1101. Remedies for breach of fiduciary duty between spouses.

"The information contained here is only for educational purposes. This does not constitute legal advice, or any attorney-client representation. You should seek legal advice from your attorney or consider having us represent your case."

Failure to serve the Preliminary Declaration of Disclosure (PDD) within the required timeframe in California divorce cases can have significant legal consequences, as outlined below:
Request for Compliance by the Complying Party:
If one party fails to serve the PDD as required under § 2104. Preliminary declaration of disclosure; Income and expense declaration; Manner of service, the complying party (i.e., the party who has served their PDD) may request the noncomplying party to prepare and serve the appropriate declaration of disclosure or provide further particularity § 2104. Preliminary declaration of disclosure; Income and expense declaration; Manner of service, § 2107. Remedies for noncompliance; Setting aside judgment; Waiver for good cause, In re Marriage of Fong, 193 Cal. App. 4th 278.
Monetary Sanctions:
Under § 2107. Remedies for noncompliance; Setting aside judgment; Waiver for good cause, a party who fails to comply with the disclosure requirements may be subject to monetary sanctions unless the court finds substantial justification for the noncompliance or determines that imposing sanctions would be unjust In re Marriage of Fong, 193 Cal. App. 4th 278, In re Marriage of Moore, 226 Cal. App. 4th 92.
Preclusion from Presenting Evidence:
If the noncomplying party fails to comply with a request to serve the PDD, the complying party may move for an order precluding the noncomplying party from presenting evidence on issues that should have been covered in the disclosure In re Marriage of Fong, 193 Cal. App. 4th 278.
Setting Aside the Judgment:
If a judgment is entered without compliance with the disclosure requirements, the court is required to set aside the judgment. This is not considered harmless error, and the judgment may only be preserved in limited circumstances, such as when the complying party voluntarily waives receipt of the PDD or when the motion to set aside is based on fraud or perjury § 2107. Remedies for noncompliance; Setting aside judgment; Waiver for good cause, BVII.01 Sample Notice, § 2105. Final disclosure declaration; Income and expense declaration.
Impact on Waivers:
A waiver of the final declaration of disclosure under § 2105. Final disclosure declaration; Income and expense declaration is only valid if both parties have complied with the PDD requirements under § 2104. Preliminary declaration of disclosure; Income and expense declaration; Manner of service. Noncompliance with the PDD requirements invalidates such waivers and may result in the judgment being set aside BVII.01 Sample Notice, § 2105. Final disclosure declaration; Income and expense declaration, In re Marriage of Binette, 24 Cal. App. 5th 1119.
Public Policy Considerations:
The California Family Code emphasizes the importance of full and accurate disclosure to ensure fair division of assets and liabilities, as well as to reduce the adversarial nature of divorce proceedings. Noncompliance undermines these public policy goals and may lead to additional legal remedies or sanctions § 2100. Legislative findings and declarations, In re Marriage of Jones, 60 Cal. App. 4th 685, In re Marriage of Burkle, 139 Cal. App. 4th 712.

In summary, failure to serve the Preliminary Declaration of Disclosure can lead to requests for compliance, monetary sanctions, evidentiary preclusion, and even the setting aside of judgments. Compliance with disclosure requirements is critical to ensure the integrity of the divorce process and adherence to California's public policy favoring full and accurate disclosure.

"The information contained here is only for educational purposes. This does not constitute legal advice, or any attorney-client representation. You should seek legal advice from your attorney or consider having us represent your case."

The timeline for an uncontested divorce case in California depends on several procedural steps and requirements. Generally, a judgment of dissolution of marriage cannot be entered until at least six months have passed from the date the respondent was served with the summons and petition, as per California Family Code § 2339. This six-month waiting period is mandatory and applies even in uncontested cases.

In addition to the waiting period, the petitioner must ensure that all required documents are filed and served. These include the Preliminary Declaration of Disclosure (FL-141), Income and Expense Declaration (FL-150), and a proposed judgment (FL-180), among others, as outlined in various local court rules RULE 5.06. UNCONTESTED TRIALS, DEFAULTS BY HEARING OR BY AFFIDAVIT OR DECLARATION, 13.14. Uncontested Trials in Dissolution and Legal Separation Matters, Rule 5.5. Procedures to Complete Dissolution/Legal Separation. If the respondent does not file a response, the petitioner may request a default judgment by submitting the necessary forms, such as the Request to Enter Default (FL-165) and Declaration for Default or Uncontested Dissolution (FL-170) 13.14. Uncontested Trials in Dissolution and Legal Separation Matters, RULE 8. DEFAULT OR UNCONTESTED JUDGMENT.

Local court rules may also impose additional requirements or timelines. For example, in Tulare County, a Case Management Conference is scheduled 120 days after the filing of the petition, by which time the parties must comply with disclosure requirements Rule 906. Family Centered Case Resolution. Similarly, in Butte County, the Preliminary Declaration of Disclosure must be served within 90 days of serving the petition 15.5. PRE-STATUS CONFERENCE REQUIREMENTS.

Once all required documents are filed and the six-month waiting period has elapsed, the court can enter the judgment of dissolution, finalizing the divorce. However, delays may occur if the required documents are incomplete or if the court requires additional hearings or evidence 13.14. Uncontested Trials in Dissolution and Legal Separation Matters, RULE 8. DEFAULT OR UNCONTESTED JUDGMENT.

"The information contained here is only for educational purposes. This does not constitute legal advice, or any attorney-client representation. You should seek legal advice from your attorney or consider having us represent your case."