Hendrickson-Olean-2012-Fall-Family-Law-Answer

Hendrickson-Olean-2012-Fall-Family-Law-Answer - [WAD...

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Unformatted text preview: [WAD fiuperinr (11mm )9 (State of (flalifnmia 8637’ RPM Pt 4’ ELIZABE'I'LAXII-IESNOSRICKSON COUNTY OF ALAMEDA FM 20/1 To: From: Professor Hendrickson Re: Final exam and Final Grade Date: 12/21/12 Attached is your final exam and final grade. I have posted the best final exam and the best midterm on TWEN. Below is the point spread for the final exam and the distribution for the final point totals and final grades. Each exam was worth 100 points and was weighted equally in your final grade. Thank you for a terrific semester. Good luck in the future. FINAL GRADE SPREAD: One A+; 11 A’s; 9 B’s; 1 B- FINAL GRADES: A+ 195, out of 200 points. A: 180 to 190 points. B: 160 to 173 points. B- 150 points. FINAL POINT SPREAD: 195, 190, 187, 186, 185, 183, 182, 180, 180, 180, 180, 180, 173, 173, 173, 171, 170,170, 164, 160, 160, 150. FINAL EXAM POINT SPREAD: 100, 100, 95, 95, 95, 95, 95, 92, 90, 90, 90, 90, 88, 85, 85, 85, 85, 85, 80, 80, 75, 75. NAME: GRADE: fir Final Paper Points and Semester Totals l 3651' 1901 Wl . Question one: 5 O . Question two: 530 Total: [0 0' /100 Midterm: 8 6 [100 Total: - 185 /200' LAW 837A { Professors Hendrickson and Olean WC” I November 21, 2012 . Legal statuses of Dawn and Gail Dawn’s arental status as a natural mother Section 7610(a) of the-California Family Code states that a parent and child relationship may be established as between a child and their natural mother. The proof of this relationship is found by the natural mother having given birth to the child. In this case, Dawn was impregnated through donor insemination in order to give birth to Mae. Dawn is legally the natural mother of Mae and therefore Mae’s legal parent. Gail’s parental status under the marital presumption In order to determine Gail’s legal status as a parent, the court would first have to recognize that in the State of California, pursuant to the California Family Code, registered domestic partners have the same rights, protections, benefits, responsibilities, obligations, and duties as are granted to and imposed upon spouses. Cal. Fam. Code § 297.5(a). So long as Dawn and Gail’s domestic partnership is valid under current state law, their partnership should be allowed the. same rights as any marriage. The court will then look to. Section 7611(a) of the California Family Code which describes the marital presumption. The statute specifically notes that a man who is married to a natural mother at the time the child is born is presumed to be the child’s father. Thelcourt would be able to apply this to the situation at hand and presume that when a child is born into‘ a registered domestic partnership, that the non-natural mother is ‘ presumed to be a parent of the child. In this case, Dawn and Gail were registered domestic partners at the time when Dawn was impregnated through dOnor insemination and when Mae was born. This would permit Gail to claim the status of a presumed parent which would give her standing to be declared Mae’s legal parent. Dawn could try to rebut this contention by arguing that the marital presumption would not apply to domestic partnerships because the purpose of the marital presumption is to determine paternity. Dawn could claim that the marital presumption speaks to a presumption of biological paternity and so does not fall under one of the rights allowed to domestic partners under Section 297.5(a) of the California Family Code. The marital presumption’s interest is in determining a “natural father.” Gail has no possible claim of a biological relationship with Mae, so the marital presumption is not applicable to her claim. ‘ Gail can counter that claim by shoWing that the California Family Code states that in a situation in which a wife is knowingly impregnated with donor sperm, that the donor has no legal standing in the child’s life and that the marital presumption still applies. Cal. Farn. Code §_ 7613(a). Because California statutes have allowed knowingly non-genetic fathers to be considered natural fathers under the marital presumption, the marital presumption should still stand with registered domestic partners. The court will likely declare Gail to be a legal parent of Mac under the marital presumption. Gail and Dawn were in a registered domestic partnership that allows them all the rights and obligations of marital spouses, including all presumptions. Because of this standing on Gail and Dawn’s relationship, the court will likely see that Gail does have the status of Mae’s presumed parent under the marital presumption. Gail’s parental status under the holding out presumption Another way Gail ‘could claim to be Mae’s presumed parent is under California Family Code Section 7611(d). This section provides a presumption if a parent holds the child out as their natural child. As above, the rights and benefits of Gail and Dawn’s domestic partnership are seen by the court to be equivalent to those of a married couple. Cal. Fam. Code § 297.5(a). Under this scenario, Gail would be able to claim that she has always considered Mac to be her natural child. Gail will depend upon evidence such as her and Dawn’s mutual decision to have a child. She will also provide evidence of taking parental leave to care for Mae, providing healthcare for the‘ entire family, and volunteering at Mae’s school as her mother. Gail will demonstrate that she has always considered Mac to be her child and has always presented Mae as such. i Dawn would, likely counter this argument the same way she could counter the argument for marital presumption. Dawn would claim that the holding out presumption is primarily to determine a child’s natural father. Dawn could argue that Gail has no claim to be a natural parent by any means, so the presumptions do not apply to this situation. Under the holding out presumption. Gail would not be able to claim that this presumption is allowed to same—sex parents under Family Code Section 297.5(a) because marriage is not a part of the holding out presumption. However, because same-sex couples are legally allowed to be parents, the court would be able to allow Gail to use the holding out presumption, not as a determination of a natural father but as a determination of a natural parent. The court would likely find that Gail is a presumed parent under the holding out presumption. Gail’s parental status as an intended parent Gail could also argue under case law regarding donor impregnation and surrogacy, she has standing as Mae’s legal mother because she was Mae’s intended parent. California case law has stated that in situations where a child is conceived via donor impregnation or surrogacy, the legal parents of the child are its intended parents at the time of the child’s conception. The California Supreme Court has held that when a parent is intended atthe time of conception, the court will honor these intents and find that the intended parent is the legal parent of a child. Johnson v. Calvert, 5 Cal.4th 84 (1993). Gail will be able to use this law to show that she was an intended parent at the time of . . Mae’s conception. In Johnson v. Calvert, the child in question was conceived using the husband’s sperm and the wife’s egg but through a gestational surrogate. The court held that the intent of the parties at the time of conception should be honored when the intended parent has also established a status of a presumed parent. In this case, should the court find that Gail. has standing as a presumed parent under either the marital presumption or the holding out presumption, the court will be able to look to the intent of the parties to determine Gail’s legal parental status. Gail will try to prove that at the time of Mae’s conception, Gail was intended to be one of Mae’s legal parents. Gail will provide evidence that she and Dawn decided to start a family together. Gail will have to bring evidence that Dawn’s decision to become pregnant through donor insemination was a decision made by the two of them with the intent that they would raise their child together. Gail will also be able to bring evidence that she and Dawn worked hard to raise their daughter to getherby rearranging their schedules and involving themselves in Mae’s school and extracurriculars. Dawn will likely try to show that the California Appellate Court has previously held that when one party is both the gestational and genetic mother that Johnsonv. Calvert does not apply. In re Marriage of Moschetta, 25 Cal.App.4th 1218 (1994). In that case, one of the parties was the surrogate who was both-the gestational and genetic mOther of the child. Dawn will try to argue that because she is both the gestational and genetic mother of Mae, that Gail has no standing. “e Gail will be able to rebut this argument by stating that the reasoning behind the court opinion in In reiMarriage of Moschetta is a public policy issue against pre—birth contracts to give up someone’s baby. Gail can argue that this is not an issue in the case at hand. She is not trying to enforce any pre—birth contract that would make Dawn give up her parental rights of Mae. She is simply trying to prove that she has legal standing as one of Mae’s parents. After finding the Gail is a presumed parent under either the holding out or marital presumptions, the court will be able to find that Gail has standing as a legal parent due to the intent of both Gail and Dawn at the time of Mae’s conception. Custody of Mae ' Legal custody In determining which parent should retain legal custody of Mae, the court is looking to make a determination regarding [which parent shall have the right and responsibility to make the decisions relating to Mae’s health, education, and welfare. Cal. Pam. Code § 3003. The court may grant joint legal custody to both Gail and Dawn or sole legal custody to only one of them. In determining the legal custody status of the parties, the court does not have a preference or a presumption for or against joint legal custody. The determination is solely at the discretion of i ' the court and the family. Gal. Fam. code § 3040(b). However the court has previously held that there is a parental presumption in which a parent has a fundamental right to raise their own child. Guardianship ofth'llip 3., 139 Ca1.App.2d 407 (1983). All custody issues are decided by the court based on a standard of best interests of the child. This best interest standard has several factors: the health, safety, and welfare of the child; history of abuse by one parent; the nature and amount of contact with both parents; and the habitual or continual illegal use of controlled substances by either parent. Cal. Fam. Code § 3011. In this case, there is no evidence that Mae’s health, safety, or welfare would be at risk dependant on the determination of legal custody to either or both of her parents. Neither party . illegally abuses controlled substances. There is also no evidence that would preclude either party from being a responsible parent in making decisions for Mae’s health, education, or welfare. Therefore, the court would likely agree to grant joint legal custody to Gail and Dawn. In doing this, the court would grant both of Mae’s parents their rights under the parental presumption as the presumption has not be rebutted by clear and ”convincing evidence. Physical custody. In making a determination about the physical custody of a child, the court is looking to decide with which parent the child will reside. The parents of the child may share joint custody per cal. Fam. Code § 3004 or the child may reside solely under the supervision of one parent with visitation allowed by the court per Cal. Fam. Code § 3007. Joint custody does not need to allow each parent equal time with their child. As with legal custody, the court shows neither a preference nor a presumption for or against joint custody. Cal. Fam. Code § 3040(b). The court instead looks to both statutory and policy factors in determining physical custody under the standard of the best interests of the child. These factors include: the health, safety, and welfare of the child; any history of abuse by one parent or other person seeking custody; the nature and amount of contact with both parents; and the habitual or continual illegal use of controlled substances by either parent. Cal. Fam. Code § 3011 and § 3020. The health, safety, and welfare of the child are the court’s top priorities and both a statutory and public policy factor in the eye of the state. Dawn’s primary argument is that she will be able to provide Mae with a stable upbringing with one mother and one father. Dawn claims that because her fiance’ is wealthy, she will be able to stay home all day to be with Mae and provide Mae with a more stable life. In comparison, should Gail be granted custody of Mae, Gail would have to continue to work. Gail has also moved to a smaller home in a less desirable neighborhood. Dawn can cite Painter v. Bannister, 285 Iowa 1390 (1966) which states that a stable, dependable, and conventional lifestyle is in the child’s best interest. Although the Iowa court in that case failed to look to the parental presumption before removing custody rights from" the true parent, the court may overlook the parental presumption in cases where both parties are the child’s parents. The court will see that Dawn’s argument is valid and that it would be in Mae’s best interest to liVe in a stable household. Gail’s rebuttal would likely revolve around her involvement in the first ten years of Mae’svwlife. Gail can argue that Mae’s best interests would not include being taken away from her mother. Gail has been a part of Mae’s life since she was born. She took six weeks of parental leave to stay home with Mae after Dawn’s parental leave ended. She adjusted her work schedule so that she was home when Mae came home from school. She also volunteered as a tutor and playground supervisor at Mae’s school. She lived and worked as Mae’s mother for ten years. and to keep her from Mae could be detrimental to Mae’s happiness and well-being. Gail can refer to Bennett v. Jejfieys, 20 N.Y.2d 543 (1976) in which the court (on remand as Bennett v. Marrow, 59 A.D.2d 492 (1977)) found that when a child lives with a non4parent for eight . years, that non-parent becomes a de facto parent. The court found that it was in the child’s best interest to not remove her from the adult she has known to be her parent for eight years. Gail will be able to use this case to demonstrate the hardship Mae could face by being torn away from her. Bennett v. Marrow conducted interviews with child psychologists who recommended that the child be returned to her defacz‘o parent for her best interests. The court would likely agree with this assessment as Gail has been a present parent in Mae’s life for ten years. The court is also not likely to grant custody to Dawn simply because Gail will remain a working mother in a small house. None of those accusations preclude Gail’s ability to be a responsible mother to Mac or to provide Mae with a stable home environment. Under this factor, the court would likely find that Mae’s best interests would be met under either a joint custody arrangement or under sole custody of either Gailor Dawn. The next factor the court has to consider is a history of abuse by One parent or any other person seeking custody. Cal. Fam. Code § 3011(b). With this factor, Gail will argue that I ~ Dawn’s fiancé has a conviction of domestic violence and should not be allowed to care for Mac. Gail’s argument will stem from her worry that her daughter would be hurt or even perceive Dawnis fiancé hurting someone. Gail claims that Mae has already witnessed Dawn’s fiance pushing and yelling at Dawn. Gail has also introduced public records regarding Dawn’s fiance’s domestic violence conviction from four years earlier against a former girlfriend. Gail will argue to the court that living in a dangerous environment would not be in Mae’s best interests. Dawn’s. rebuttal to this argument would be that her fiance is not a party to the case and is not currently seeking custody of Mae. She will argue that the statute clearly states the factor as a history of abuse by “one parent or any other person seeking custody.” Cal. Fam. Code § 3011(b). Currently, Dawn and Gail are the only parents in the case and the only persons seeking custody. Therefore, Dawn will claim that her fiance’s history is not relevant to the court’s - decision. However, the court will likely find otherwise. The physical custody of a child is at the discretion of the courts under the standard of the child’s best interest. The court will likely use the child’s best interest standard to see that Mae’s best interests would not be served if DaWn had physical custody of her. The court would look at Dawn’s intentions to not only live with her boyfriend but also marry him and have him adopt Mae as a harmful situation for Mae. The fact that Maehas already seen Dawn’s fiancé yell and push Dawn proves that Dawn’s fiance’s abusive behavior will be present Mae’s life. The court will likely agree with Gail that the abusive actions of Dawn’s fiancé would create a negative environment for a child. ' The next factor the court will consider is both a statutory and public policy issue: to assure that the child has frequent and continuing contact with both parents. However, the court has explained that when a custody determination ismade under this factor, the party’s argument must be based on actual conduct and not conjecture of conduct. Johnson v. Johnson, 564 P.2d . 71 (1978). Under this factor, Gail will be able to argue that Dawn’s behavior speaks to her intentions of not allowing Mae to have contact with Gail. Gail would also be able to argue that she sees Mac as both hers and Dawn’s child as evidenced in her petition to dissolve their domestic partnership. Gail listed Mae as a child of their relationship. Dawn, however, did not. With this evidence of Dawn’s conduct, the court would likely find that-if granted custody, Dawn would not readily encourage Mae’s relationship with Gail. The last factor the court must consider is the habitual or continual illegal use of controlled substances. This factor is not at issue in this case as neither Gail nor Dawn has claimed that the other party is an abuser of an illegal substance. In order to determine the physical custody of Mae, the court must look at all of these factors. The court may also ask Mae if she has a preference of which parent with whom she would like to reside. 'The court notes that a child’s opinion can be important and if the child is of . a sufficient age and capacity to form an intelligent preference, the court shall consider the will of the child. Cal. Fam. Code § 3042(a). However, the child’s preference is not determinative, and the court will still retain its discretion in its ruling. Should Mae choose to make her preference known and should the courts find her to be capable of making an intelligent preference, the cburt will consider that'preference along with the other factors they must consider. I In this case, the court would be apt to find that Mae’s best interests would be served by granting Gail sole custody of Mae but allow visitation by Dawn. In orderto keep Mae safe and to protect her well-being, the court will find that living with Dawn and Dawn’s fiance could be ' an unsafe environment given the abusive history of Dawn’s fiance and the fact that Mae has already seen the fiance’ push and. yell at Dawn. The court will also find that by granting Gail sole custody with visitation to Dawn, Mae is more likely to still see both of her parents than she Would have been if Dawn had been granted sole custody. Gail has also proven to the court that she is ‘a fit parent whose primary goal is to ensure Mae’s health safety and welfare. At this time, Dawn is also seen by the court to be a fit parent. However, the court will side with Gail due to the circumstances of Dawn’s living situation with her fiance and Dawn’s actions upon the termina...
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