New Amendments to California's Uniform Child Custody Jurisdiction and Enforcement Act: Protecting Access to Gender-Affirming Health Care

Effective January 1, 2023, California's Senate Bill 107 (Stats 2022, ch 810) brings significant changes to the Uniform Child Custody Jurisdiction and Enforcement Act (Fam C §§3400–3465) to protect and support access to gender-affirming health care for children.

These amendments include:

1. Prohibition of enforcement of laws from other states that allow state agencies to remove a child from their parent or guardian based on the parent or guardian allowing their child to receive gender-affirming health care or mental health care.

2. Preventing courts from considering a case as an inconvenient forum if the law or policy of another state that may take jurisdiction limits a parent's ability to obtain gender-affirming health care or mental health care when the provision of such care is at issue in the case.

3. Authorizing courts to take temporary jurisdiction when a child has been unable to obtain gender-affirming health care.

4. Prohibiting courts from considering the taking or retention of a child from a person with legal custody if the reason for taking or retention is obtaining gender-affirming health care or mental health care.

These amendments aim to safeguard the rights of children and their parents or guardians to access gender-affirming health care without fear of legal repercussions or custody disputes. The changes highlight the importance of recognizing and respecting the diverse needs of children and families when it comes to health care decisions, particularly in the context of child custody cases.

Understanding the Income and Expense Declaration in California Family Law Cases

When dealing with child support, spousal support, or attorney fees and costs in California family law cases, it's essential to understand the importance of the Income and Expense Declaration (Judicial Council Form FL-150) or Financial Statement (Simplified) (Judicial Council Form FL-155). These forms provide the court with crucial information to assess a party's earning capacity and make appropriate support orders.

A completed Income and Expense Declaration should include the party's current employment details, age, and educational history. It must be attached to any application for support orders and filed on time, as an untimely declaration may be disregarded by the court (Marriage of Kahan & Diamond (2021) 72 CA5th 595, 601).

The declaration should have the party's three most recent pay stubs attached, and self-employed individuals must include a current federal income tax Schedule C and a profit-and-loss statement. Always check local court rules for any additional required attachments.

It's important to note that in proceedings involving child, family, or spousal support, parties cannot refuse to submit their state and federal income tax returns to the court (Fam C §3552(a)).

Post-judgment, either party may serve a request for a current Income and Expense Declaration (Fam C §3664), allowing them to assess whether a modification of support orders is necessary. For a declaration to be considered current, it must have been completed within three months before a hearing, with no significant changes in circumstances (Cal Rules of Ct 5.260(a)(3)).

By understanding the Income and Expense Declaration and its role in California family law cases, parties can ensure they provide the necessary information for the court to make informed decisions on support orders.

LEGAL BENEFITS OF GETTING MARRIED

Why get married anyways?  The below explains some key rights you get just because you are married.  It’s important to keep in mind that this list does not cover what happens to your premarital and marital property under state law in the event of a divorce or death.   

1.    Tax benefits

Married couples can be eligible for tax benefits such as lower tax rates, increased deductions, and the ability to file joint tax returns. You can create life estate trusts that are restricted to married couples, including QTIP trusts, QDOT trusts, and marital deduction trusts.

You’ll qualify for an estate tax marital deduction. When one spouse dies, his or her estate passes to the surviving spouse, tax-free. That’s not true for domestic partners, and even though the federal exemption is fairly high, the exemption in some states is low enough to catch even moderate estates.

Keep in mind there are also tax drawbacks (Marriage penalty tax).

2.    Property Rights

 You can roll over a deceased spouse’s IRA to the surviving spouse’s IRA. If your significant other dies with an IRA and you aren’t married, you’ll have to start taking distributions immediately, regardless of your age. 

You can create a "family partnership" under federal tax laws, which allows you to divide business income among family members. Under IRC 1041 you can transfer property to each other without tax consequences.

You can contribute to a spousal IRA.

You can receive survivor’s benefits from a pension plan (which would otherwise cease if you were not married).

3.    Family leave

FMLA, CFRA and other types of leave that guarantees your job will be there when you return – not allowed when the person you are taking care of is not your family. Visiting your spouse in a hospital intensive care unit or during restricted visiting hours in other parts of a medical facility is often reserved for family members not just people in a romantic relationship.

4.    Social Security benefits

Married couples may be entitled to Social Security benefits based on their spouse's work record.

5.    Insurance benefits (health, auto etc) 

Many employers offer health care benefits to employees and their spouses.  You can get reduced rates on other insurance (auto etc) as a family plan.

6.    Legal privileges (spousal privilege, marital communications privilege, etc.)

Spousal Privilege is a legal principle that allows a spouse to refuse to testify against their partner in court.  Marital communications privilege is a privilege that means a court can't force you to disclose the contents of confidential communications made between you and your spouse during your marriage.

When one spouse is unable to make legal decisions, the other spouse can typically make decisions on their behalf.

You can sue a third person for wrongful death of your spouse and loss of consortium (i.e. loss of companionship, comfort, and support).  You can receive a crime victims' recovery benefits if your spouse is the victim of a crime (or natural disaster like the PG&E Fires).

Obtaining immigration and residency benefits for noncitizen spouse.

Visiting rights in jails and other places where visitors are restricted to immediate family.

Premarital Agreement

A prenuptial agreement is a legally-binding contract that outlines the financial arrangements between two individuals entering into a marriage or domestic partnership. It serves to protect each partner's assets and property in the event of a legal separation or divorce. When drafting a prenup, it is important to consider the following points:

1. Identification of all property brought into the marriage or partnership by each partner.

2. Determination of how income and assets acquired during the marriage or partnership will be characterized.

3. Clarification of the legal rights to control separate property in the event of a divorce.

4. Confirmation or waiver of estate planning rights at death.

5. Provisions for ongoing spousal support in the event that one spouse has a higher income or greater financial resources.

6. Rules for how the use of separate property towards a community asset will be valued and apportioned.

7. Process for resolving disputes in the future, such as through mediation, attorneys' fees, or counseling.

Should you appraise your home?

Experienced Bay Area family law attorneys will tell their clients that in a divorce, real estate is often the most valuable asset that needs to be divided between the parties. To determine the fair market value of the property, it is common to hire a real estate appraiser. Alternatively, you could ask a realtor for a Comparative Market Analysis (CMA) to estimate the value of the property. Just be careful, as some realtors may be a bit "overenthusiastic" about the price they think they can achieve. And if the estimates from the CMAs differ significantly, it might be a good idea to get an appraisal to settle the matter once and for all. Just be sure to choose an appraiser who is objective and impartial, otherwise, the whole process could be a bit of a "home" wreck.