Elements of valid marriage

In general—consent, license, solemnization, authentication: A valid marriage under California law requires the consent of the parties to that civil contract. [Fam.C. § 300(a)] But the parties’ consent does not alone constitute a marriage. To validate the marriage, the consent must be followed by issuance of a license (Fam.C. § 350 et seq.), solemnization (Fam.C. § 400 et seq.) and authentication (Fam.C. §§ 422–425); and the authenticated marriage license “shall be returned to the county recorder of the county where the marriage license was issued.” [Fam.C. §§ 300, 306; see also Fam.C. §§ 359, 360; Lockyer v. City & County of San Francisco (2004) 33 C4th 1055, 1075, 17 CR3d 225, 235–236; Estate of DePasse (2002) 97 CA4th 92, 101, 118 CR2d 143, 150]

What if you are married outside of California (or in a foreign country)?  The answer is that the marriage is valid so long as the marriage complied with all legal requirements of the jurisdiction where you married.  Typically, this means that you obtained a valid marriage license, the marriage was consensual and was authorized pursuant to law.

If the marriage is not a valid marriage then the marriage may be void or voidable (depending on the situation).  Therefore, it is extremely important when considering a divorce to first consider whether your marriage is a valid marriage under California law. If it is not a valid marriage then you may not have to file a divorce lawsuit.

If you have any questions regarding your California divorce matter please contact attorney Keith F. Simpson in Manhattan Beach, California at (310) 297-9090 to discuss your matter today.

http://www.simpsonlaw.net

http://www.caldivorce.net

I always recommend first discussing the matter with the non-moving parent. If the non-moving parent agrees with the move away then we can simply draft the required documents and request the Court to sign. This is the easiest way to accomplish a move away out of state.

If the non-moving parent objects to the move away then we must file a motion with the court and request a court order to allow the move away out of state.  The non-moving parent will have the opportunity to object to the move away and the court will hold a full court hearing.  If the matter is very complex the court  may order that Minor’s counsel be appointed for the child or children and a California Family Code Section 730 Evaluation occur to evaluate what is truly in the best interest of the children.  After an evidentiary hearing the court will either conclude that the moving parent may move away with the children or the moving parent may not move away with the children.  (The judge cannot order the moving parent to remain in the area however the judge can order the children to stay with the non-moving parent).  These are the possible Court orders.  Therefore, I do not recommend that you attempt to pursue this matter without an attorney.  This area of law is extremely complex and therefore requires legal representation in my opinion.

Now for the law on Move Away matters. In California, the Custodial Parent has a presumptive right to change the children’s residence.  By statute, the parent with sole physical custody of the children has the presumptive right to change the children’s residence—i.e., to move away with the children; courts will not interfere with that decision (enjoining the relocation or changing custody) unless the move is detrimental to the child. “A parent entitled to custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child.” [Fam.C. § 7501(a); Marriage of Burgess (1996) 13 C4th 25, 32, 51 CR2d 444, 449; see Marriage of LaMusga (2004) 32 C4th 1072, 1094, 12 CR3d 356, 372—custodial parent's presumptive right to relocate with children not dependent on whether parents had history of cooperative coparenting]

However, there is not an absolute right to relocate or Move Away.   Section 7501 unambiguously provides that the custodial parent’s right to relocate with the children is presumptive only—not absolute; that right may be curtailed if the move would result in detriment to the children. This is so even if the custodial parent has been awarded both sole legal and sole physical custody; he or she nonetheless has no “inherent” or “absolute” right to change the children’s residence. “[T]he statute contains no qualifying language purporting to limit its application to parents with only certain custodial rights.” [Marriage of Brown & Yana (2006) 37 C4th 947, 957, 38 CR3d 610, 616; see also ¶ 7:562a re noncustodial parent's standing]

The Standard and burden of proof is as follows:  Generally, the governing standards and burdens of proof in move-away cases are the same as in all custody adjudications:

Initial custody adjudications—best interest analysis: In an initial custody determination, the trial court has the “widest discretion to choose a parenting plan that is in the best interest of the child” (Fam.C. § 3040(b)) and must look to all the circumstances bearing on the child’s best interest (including, of course, the mandatory § 3011 factors, ¶ 7:312 ff.). [Marriage of Burgess, supra, 13 C4th at 31–32, 51 CR2d at 449; see Ragghanti v. Reyes (2004) 123 CA4th 989, 996, 20 CR3d 522, 527(trial court used correct “best interest” analysis because parties stipulated there was no existing “final permanent custody order”)]

Some questions which will need to be addressed in a Move Away Motion are as follows:

• the children’s interest in stability and continuity in the custodial arrangement;

• the distance of the move;

• the children’s age;

• the children’s relationship with both parents;

• the relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the children’s interests above their individual interests;

• the children’s wishes if they are mature enough to make that inquiry appropriate;

• the reasons for the proposed move; and

• the extent to which the parents currently are sharing custody.

As discussed above, this is a very complex area of California Family Law and I therefore recommend that you contact a competent attorney to represent you if you are contemplating pursuing or opposing a child custody Move Away motion.  Please contact Attorney Keith Simpson to discuss your legal matter today at (310) 297-9090 or visit his website at http://www.simpsonlaw.net.  Attorney Simpson is located in Manhattan Beach, California and practices Family Law throughout California.

California law provides that a child support judgment is enforceable until paid in full or otherwise satisfied—even after the child reaches age 18. This includes interest and penalties computed thereon. (California Family Code Sections 291(a) and 4503).  See also Marriage of Hamer (2000) 81CA4th 712, 718, 97 CR2d 195, 199.

Regarding child support arrearages (unpaid child support), like all money judgments, California child support orders accrue post judgment interest at the legal rate of 10% per annum.  Unless the judgment provides otherwise, the interest accrues as to each installment when each installment becomes due and continues to accrue for so long as the arrearage remains unpaid. See California Constitution Article XV, Section 1; California Codes of Civil Procedure Sections 685.010(a), (b), 685.020(b); Marriage of Hubner (2004) 124 CA4th 1082, 1089, 22 CR3d 549, 553-554.  Since the interest on arrears accrues and is payable as a matter of law, trial courts are without authority to waive or forgive interest accrued on past-due child support amounts, just as courts cannot retroactively modify or terminate the arrearages themselves. See Marriage of Hubner (herein); Marriage of Robinson (1998) 65 CA4th 93, 98, 76 CR2d 134, 137; Marriage of McClellan (2005) 130 CA4th 247, 259, 30 CR3d 5, 14-15.

If you have a valid order or judgment for the payment of Child support in California, you have the right to demand payment and enforce the judgment. There are many ways to enforce a child support order (this will be a discussion for another time).  If the parent who is ordered to pay child support refuses to pay, it is important that you see an attorney immediately to discuss your rights and possible remedies. Please contact Attorney Keith F. Simpson at (310) 297-9090 to discuss your child support issues today!

The Law Offices of Keith F. Simpson, A Professional Corporation, is located at 1230 Rosecrans Avenue, Suite 170, Manhattan Beach, California 90266.  You may also review the website at www.simpsonlaw.net or call Keith Simpson to schedule an appointment.

All minor children of the parents are owed a duty of child support.  The obligation to support a child is not limited to the parents’ marital status nor is it limited to biological offspring!  (California Family Code Section 7602; White v. Marciano (1987) 190 CA3d 1026, 1031, 235 CR 779, 782)

Once the issue of parentage is determined, the court will move to decide the issue of child support.  A finding of parentage occurs when the court makes a finding as to who are the child’s legal parents.  In California, courts will use a program called Dissomaster which is a computer program.  The judge will input data into the Dissomaster program to determine the amount of child support one parent will be ordered to pay the other parent.  The types of data include 1) the amount of custody each parent has 2) the respective incomes 3) the monthly expenses 4)hardship expenses 5) multiple other expenses and data.  The Dissomaster will provide a child support number which the court will usually accept and order the supporting parent to pay the non supporting parent.

The guideline formula for computing child support is provided algebraically as follows:  CS = K [HN -(H%) (TN)] (See California Family Code Section 4055(a)).

CS equals Child Support;

K equals the amount of income to be allocated for child support as set forth in Family Code Section 4055(b)(3);

HN equals high earner’s net monthly disposable income;

H% equals approximate percentage of time high earner has or will have primary physical responsibility for the children compared to the other parent (where the parents have different time-sharing arrangements for different children, H% equals the average of the approximate percentages of time the high earner spends with each child);

TN equals total net monthly disposable income of both parties. (See California Family Code Section 4055(b)(1).

Child support, unlike spousal support, is not tax deductible to the paying spouse.  Furthermore, child support is not taxable as income to the parent receiving the child support.  It is important to have your attorney request child support payments at the outset of your divorce case if you are eligible to receive child support.  The issue of child support is a complex matter and should be discussed with your attorney.  For further questions, please contact Attorney Keith F. Simpson today at 310-297-9090 or read more about California divorce and family law at his websites www.simpsonlaw.net or www.caldivorce.net

Keith F. Simpson is a Manhattan Beach, California lawyer who practices law throughout the State of California. Call Attorney Keith F. Simpson today with your child support or divorce question.

There are many instances in the United States where, for example, an American citizen marries a Japanese citizen, they have children, but in the end divorce.  They part ways and the Japanese Mother decides to return to Japan taking the children.  The Hague Convention would require the Japanese Government to return the children to their home jurisdiction.  Since Japan is not a member of the Hague Convention it is under no obligation to listen.

Over the past decade there has been a movement to encourage Japan to become  signatory to the Hague Convention on International Parental Child Abduction.  Time and time again Japan has stated that they will “consider it.”   Again the Yomiuri Shinbun today stated that Japan will sign the Hague Convention – http://www.crnjapan.net/The_Japan_Childrens_Rights_Network/itn-japwsthc.html

If Japan continues on their path of  “considering signing” Left Behind Parents are left with little to no recourse.   I think it is fair to examine what role the United States Government has in this process.  The United States and Japan are allies and have close ties.  The United States Government has had military bases within the country of Japan since the end of World War II and continues to protect Japan by stationing troops within the country.

The US State Department’s Mission Statement is as follows: Create a more secure, democratic, and prosperous world for the benefit of the American people and the international community.   Although these Left Behind Parents have not lost legal custody they have in fact lost the ability to see their children and therefore are actually denied custody.  It appears that the State Department understands the problem as it does communicate with left behind American parents through quarterly round table meetings.  However, the State Department has not been able to bridge the gap and continues take action.  It has been unable to take any action to convince the Government of Japan that it should become a Member of the Hague Convention and enforce child custody orders issued by American Courts.  Japanese Courts simply do not recognize American child custody orders and therefore refuse to enforce these court orders.

It certainly seems that the United States Government, and specifically the State Department, should be able to do more.  The mission of the State Department is to protect and secure American people.  The State Department’s inaction on this matter results in non-compliance with its Mission Statement.  The children are American citizens (presumably born in America) and they are being deprived of their right to frequent and continuing contact with their American parent as well as compliance with an American Court child custody order.  Furthermore, the American parent usually loses all child custody rights when the Japanese parent returns to Japan with the children.

So what can the State Department do?  It certainly seems that given the status quo, the State Department can and should take action to do everything in its power to prevent the abductions from occurring.  The State Department should have a process to screen parents on international flights who are departing with children and without the other parent.  This seems like a common sense first step. Perhaps they can have the departing parents sign an agreement promising to return to the United States with the children.  This seems that a signed agreement would assist the United States Government with its request to return children.  There are other options which the Department of State can and should take.  It is clear that the State Department needs to take a more proactive role in an attempt to reduce the number of International Parental Child Abductions. Hopefully the State Department will take steps to further abide by its Mission Statement and make the world a more secure place for American citizens in 2011.

DETERMINING TEMPORARY SPOUSAL SUPPORT

So, how does a court determine who will pay and how much spousal support should be paid?  There are two basic factors for the court to consider in awarding temporary spousal support.  First, the court evaluates the applicant’s need for support and the other party’s ability to pay.  (See Marriage of Stich (1985) 169 CA3d 64, 74, 214 CR 919.   Temporary spousal support may be ordered in any amount based uon the party’s need and the payor’s ability.  Findings of the trial court on need and ability are reviewed under the abuse of discretion standard.  (See Marriage of Wittgrove (2004) 120 CA4th 1317, 17 CR3d 489)

Generally, courts take the view that the purpose of temporary spousal support is to enable the supported spouse to live in his or her accustomed manner pending disposition of the action (See Estate of Fawcett (1965) 232 CA2d 770, 784, 43 CR 160.  See also Marriage of Wittgrove, supra; Marriage of Winter (1992) 7 CA4th 1926, 1932, 10 CR2d 225) However, courts do recognize that incomes are often insufficient to support two separate households and still maintain the same standard of living during a pending divorce.

Courts typically refer to “Guidlines” in an effort to determine temporary spousal support. A trial court’s use of guidelines based solely on affirmed income is appropriate.  See Marriage of Winter (1992) 7 CA4th 1926, 1933, 10 CR2d 225.  However, the Court may not use “Guidelines” when determining long term spousal support.

A temporary spousal support order is terminated by the issuance of a judgment, dismissal of the pending action or expiration under its own terms.  An order for temporary spousal support may be modified  or terminated by the court at any time.  Modification or termination may not, however, affect the payor’s liability for payments that accrued before the notice of motion or order to show cause to modify or terminate was filed.  (See California Family Code Section 3603)

Temporary spousal support may be modified without a showing of a change of circumstances (unlike post judgment spousal support).  See Sande v. Sande (1969) 276 CA2d 324, 329, 80 CR 826.

Current circumstances: In evaluating the parties’ respective needs and abilities to pay, the court cannot engage in speculation. Its order must reflect the present facts and circumstances, based on evidence in the record and inferences reasonably drawn therefrom at the time of the hearing. [Marriage of Prietsch & Calhoun (1987) 190 CA3d 645, 656, 235 CR 587, 590;Marriage of Baker (1992) 3 CA4th 491, 498, 4 CR2d 553, 557; seeMarriage of Rosen (2002) 105 CA4th 808, 824, 130 CR2d 1, 10—abuse of discretion to fix spousal support on basis of self-employed obligor's average income 2 years before support hearing where evidence at time of hearing showed substantially lower income]

It is disappointing that President Obama passed on an opportunity to discuss with Japanese Prime Minister Naoto Kan the epidemic of Parental Child Abductions in Japan.  After all, did not President Obama run on the platform of Change?  It appears that President Obama’s inaction in Japan signals the status quo will remain as policy for the present.

New Jersey Congressman, Rep. Chris Smith, urged President Obama prior to the trip to raise the “heartbreaking” issue of Parental Child Abduction with the Japanese Prime Minister.  Presently, Japan remains the only G-7 industrialized nation that has yet to accede to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The Hague Convention has been adopted by more than 70 countries and is an important tool for those seeking access to and/or the return of a child abducted across international borders.

France recently passed a Resolution condemning Japan for its policy of not only allowing Parental Child Abduciton to occur but actually tolerating the policy.  According to The Japan Children’s Rights Network, Japan has never returned a child brought there by a parent in violation of a United States custody order.  This statement is also supported by the U.S. Department of State website.

Recently the House of Representatives passed H.R. 1326 “Calling on the Government of Japan to immediately…provide left-behind parents immediate access to their children”. Congressional members condemned Japan for permitting human rights abuse against children, denying them the love of a parent, relatives and friends.  Read the full text of H. Res. 1326 by clicking on this link. http://thomas.loc.gov/cgi-bin/query/z?c111:H.RES.1326:  The final vote passed on the Congressional floor.  Now it has been moved to the U.S. Senate for consideration.

I believe that Parental Child Abductions  are currently allowed to occur because most people are not aware of this epidemic.  It is only through blogs such as this as well as the public statements from Representatives, and websites like http://www.crnjapan.net that the public will become aware.  I believe we will see outrage over families being torn apart because of Japanese public policy.  Japanese law must be changed to recognize foreign child custody orders as is the case in all other First World Nations.  President Obama once again had a chance to address this issue with the Japanese Prime Minister, but failed all American Left Behind Parents by letting this golden opportunity slip by.

Recently events occurring in the world of International Parental Abduction and the country of Japan have been in the spotlight.   Japan is not signatory to The Hague Convention on the Civil Aspects of International Child Abduction and remains the only first world nation which refuses to join. The Hague Convention was formed for the express purpose to provide an expeditious method for the prompt return of an abducted child from from one member nation to another member nation. The purpose of the Hague Abduction Convention is to preserve the existing court order and custody arrangement. While the Hague Convention may not be the perfect solution, it is a line of defense for the Left Behind Parent.  Since Japan is not a member nation there is no working framework to return an abducted child from Japan to another country. Unfortunately for American parents, the Japanese courts have been at best, reluctant, to return an abducted child to the United States despite a court order from an American court to do so.

The United States Department of State website provides in part,

“…in cases of international parental child abduction, foreign parents are greatly disadvantaged in Japanese courts, both in terms of obtaining the return of children to the United States, and in achieving any kind of enforceable visitation rights in Japan. The Department of State is not aware of any case in which a child taken from the United States by one parent has been ordered returned to the United States by Japanese courts, even when the left-behind parent has a United States child custody decree.”

http://travel.state.gov/abduction/country/country_501.html

International Parental Abduction is a terrible situation and can often render a Left Behind Parent helpless. They are faced with the prospect of losing custody of their child forever if the Japanese parent returns to Japan.

So, what is an American parent to do when a Japanese parent is threatening to return to Japan with the child or children?

As an attorney representing a parent that is faced with the possible abduction of a child to Japan it is imperative for me to plan a strategy to immediately get into court and educate the judge. Many judges are not aware that Japan is not a party to The Hague Convention on the Civil Aspects of International Child Abduction. This can and has been shown to sometimes lead to bad decision making.  If an American parent is faced with the possible abduction of their child by a Japanese Parent, making sure the judge is fully informed of his obligations under the law must be the focus of our petition.

Historically judges may choose to order a Japanese parent to post a bond if they wish to vacation with the children in Japan. A bond however has been shown to be useless time and time again.  No amount can replace the love of a parent / child relationship.  No amount can cover possible costs when faced with retaining a Japanese attorney to attempt to litigate the matter in Japan. As set forth above, the United States Department of State is not aware of any case where the child was successfully returned to America. It never happens!! Posting a bond may suffice if the parent is returning to a Hague Signatory nation. Since Japan is not a member nation a bond will never suffice as a safeguard for the non-Japanese parent.

I have found that Japanese parents typically argue to the court that they have significant ties to the community in the United States and pose no flight risk.  There are many reports of Japanese abducting parents stating time and time again that they promise to return after a short trip to see Grandma, never to be seen again. We have to respond and demonstrate to the courts successfully that the Japanese parent does not have significant ties.  There are a number of methods to demonstrate their lack of connection by producing relevant evidence. Another safeguard is to request that the court order the Japanese parent to surrender both the American and Japanese passports.  Unfortunately, there are again numerous reports of the local Japanese Embassy and Consulates issuing “emergency” passports to abducting Japanese Parents.  The American parent should also inform the local airport authorities of the situation and provide a detailed description of the child or children along with any recent court orders. If the Japanese parent is determined to return to Japan then it is vital to prevent the children from boarding the airplane.  Once the plane has departed the Left Behind Parent is in for the fight of their life!

Recently the United States House of Representatives, in H. Res. 1326 as well as a coalition of Ambassadors to Japan have stepped forward and condemned Japan for it’s lack of action when a citizen of Japan breaks International Law by parentally abducting a child.

“…the Government of Japan has refused to prosecute an abducting parent or relative criminally when that parent or relative abducts the child into Japan;”

“the Ambassadors to Japan of Australia, France, New Zealand, the United Kingdom and the United States, the Charges d’Affaires ad interim of Canada and Spain, and the Deputy Head of Mission of Italy, called on Japan’s Minister of Foreign Affairs, submitted their concerns over the increase in inter- national parental abduction cases involving Japan and affecting their nationals, and again urged Japan to sign the Hague Convention;”

The country of France is also in process of issuing condemnation through their senates special session.

“Japan does not punish the illicit transfer of children and it has not signed the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. “

My hope is that the nation of Japan will become a party to the Hague Convention and allow all left behind parents access to their abducted children immediately. If you are in an international marriage or relationship it is vital that you seek legal advice regarding the custody of your child if the other parent wants to return to his or her homeland without your consent.

For further assistance please contact Attorney Keith F. Simpson of the Law Offices of Keith F. Simpson, A Professional Corporation

(310) 297-9090

http://www.simpsonlaw.net

http://www.caldivorce.net

http://www.lacountyfamilylaw.com

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ref:

http://travel.state.gov, http://www.senat.fr, & The Japan Children’s Rights Network – http://www.crnjapan.net