“Hey Joe, Where You Going with that Gun? 1 ”

Editor’s Desk � � � � � � � � � � � � � � � � � � � 2Richard Gould-Saltman, cfls

President’s Message � � � � � � � � � � � � � � 3Lynette Berg Robe, cfls

2013 ACFLS Board of Directors � � � � � �8Slate of Nominees and Ballot for the 2014 Acfls Board � � � � � � � � � � �9Too Much of a Good Thing: “No Fault” Taken to its Most Illogical Extreme � � 10

Arnold David Breyer, cflsWhat Are the Constraints on Abbreviated Parenting Assessments? (part 1) � � � � � � � � � � � � � � � � � � � � � � � � 12

Hon. Dianna J. Gould-Saltman & Richard F. Gould-Saltman, cfls

WH

AT

’S IN

SID

E

Hot Off The Press, Journal Edition � � � � � � � � �18Dawn Gray, cfls

The Ups and Downs of Social Media Evidence in Litigation � � � � � � � � � � � � � � � � � � � � � � � � � � �20

Rhoda A. Chandler, cflsSmall Town Practice – or, Northern Exposure Meets LA Law (Well, Sort Of) � � � � � � � � � � � � �26

Claudia Silverman, cflsReport of the Legislative Director � � � � � � � � �28

John D. Hodson, cflsOutreach Committee Report � � � � � � � � � � � � � � 30

Linda Seinturier, cflsMembership and Benefits Committee Report � � 31

Joseph J. Bell, cflsACFLS CLE on DVD/CD/MP3 � � � � � � � � � � � � � � � 33

IntroductionDomestic violence is a critical issue facing California family law practitioners, and laws addressing domestic violence have profound sociological implications. Data consistently indicate that firearms are the overwhelming weapons of choice when intimate partner violence turns deadly.2 In a laudable effort to reduce such violence, California (similar to a handful of other states) requires that all persons subject to a Protective Order issued pursuant to the Domestic Violence Prevention Act sur-render their firearms and ammunition within 24 hours of being served with the Protective Order. Significantly, California’s firearm prohibition extends to persons

subject to a Temporary Protective Order issued without notice to the restrained party, without any allegations of actual or threatened violence (let alone any involving a firearm) and without any need to show any exigency to justify the lack of notice. In the absence of any consti-tutional analysis, such firearms restrictions may or may not constitute good public policy. However, in light of recent United States Supreme Court decisions establish-ing firearm ownership as a fundamental right guaran-teed by the Second Amendment to the United States Constitution, some of the firearms restrictions set forth in the Domestic Violence Prevention Act are almost certainly unconstitutional.3

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Jour n a l of t he Ca l i for n i a Asso c i at ion of Cer t i f i ed Fa m i ly L aw Spec i a l is ts

w w w�acf l s �org Fa l l 2013, No� 3

“Hey Joe,Where You Going with that Gun? 1 ”Do the Automatic Firearm Restrictions

in California DVPA OrdersConflict with the Second Amendment?

David Shebby, cfls

Los Angeles County • [email protected]

Continued on page 4 (Shebby)

Fall 2013, No� 3 PAGE 2 ACFLS Family Law Specialist

Family Law SpecialistFall 2013, No. 3

Journal of the CaliforniaAssociation of Certified Family Law Specialists

PresidentLynette Berg Robe, cfls

Vice-PresidentJill L. Barr, cfls

Journal EditorRichard Gould-Saltman, cfls

Associate Journal EditorDebra S. Frank, cfls

PrintingExecuprint/Chatsworth, California

Graphics and TypographyGraeme Magruder/Kalligraphics

Family Law Specialist is a publication of the Association of Certified Family Law Specialists.

Send your submissions in Word or WordPerfect by email to:

Richard Gould-Saltman, cfls 2013 Journal Editor

Email: [email protected] or

Debra S. Frank, cfls 2013 Associate Journal Editor & 2014 Journal Editor

Email: [email protected]

All contributions become the intellectual property of ACFLS, and may be distributed by ACFLS in any fashion

it chooses, including print, internet and electronic media. Authors retain the right to independently republish or distribute their own contributions.

This journal is designed to provide accurate and authoritative information in regard to the subject matter covered and is distributed with the under standing that ACFLS is not engaged in rendering legal, accounting or other professional advice. If legal advice or other

expert assistance is required, the services of a competent professional person should be sought.

ACFLS Mission StatementIt is the mission of Acfls to promote

and preserve the Family Law Specialty. To that end, the Association will seek to:

1. Advance the knowledge of Family Law Specialists;

2. Monitor legislation and proposals affecting the field of family law;

3. Promote and encourage ethical practice among members of the bar and their clients; and

4. Promote the specialty to the public and the family law bar.

ACFLS Executive DirectorFor circulation, membership, administrative and

event registration requests, contact:

Dee Rolewicz, ACFLS Executive Director 1500 W. El Camino Avenue, Suite 158

Sacramento, CA 95833-1945 (916) 217-4076 • Fax: (916) 930-6122

Email: [email protected]

© 2013 Association of Certified Family Law Specialists

As we march towards the State Bar Annual Meeting, and Fall, and the ACFLS Holiday Party,

I take my leave of this virtual desk, at least for the moment, and turn the reins back to Debra Frank, the current associate editor, with the next issue. (See the Board slate, in this issue.) I have achieved some of my goals; others have “gang agley,” to wax Burnsian for a moment.1

In this issue, David Shebby offers one side of the Heller/DVPA debate I sought; much to my surprise, nobody has yet offered an equally spirited or equally intellectually rigorous argument on the other side, though publication of David’s article will I hope inspire such a response.

Arnold Breyer considers whether the adoption of “no fault” dissolution, now forty-three years distant, has para-doxically vitiated the underlying ability of spouses to enforce either explicit or implied agreements regarding their conduct, other than their statutory fiduciary duties.

Rhoda Chandler examines the constraints and advantages of pres-entation of evidence from “social networking,” as that form and forum of communication rapidly begins to displace others.

Claudia Silverman begins the exploration of family law practice “outside the bubble” of the coastal megalopolises (“megalopoli”?), an explo-ration which I hope will continue, with input both from practitioners and from judicial officers.2

Soon-to-be Hall-of-Famer and peren-nial family law scholar Dawn Gray has, as usual, provided hot cases, and John Hodson provides our legislative update. We continue to receive more feed-back, news, and scholarly input from the Chapters and the Committees; I sincerely hope that that increased level of participation will continue with the new Board.

Finally, there’s part one of a two-or-more part contemplation of the “short/fast/cheap” paradox in custody evalua-tions, for which my lovely and learned spouse, Dianna is primarily responsi-ble, with occasional thoughts from me; parts 2 through x will explore the underlying scientific and evidentiary issues more fully.

Again, my gratitude not only to the Presidents, Diane W. and Lynette, my co-editors, and most of all to Dianna, without whom I would not have suc-ceeded as far as I have.

Endnotes:

1 It’s the McFarlin side of my heritage coming out. Be glad I’m not playing a bagpipe.

2. We don’t, after all, all always represent Britney, or the McCourts. n

From the Editor’s DeskRichard Gould-Saltman, cfls

ACFLS Journal Editor

Los Angeles County

[email protected]

ACFLS Family Law Specialist PAGE 3 Fall 2013, No� 3

Annual Awards and Holiday Party and Nominations for Board Slate for BallotAnnual AwardsYour ACFLS Board has chosen the awardees for our three annual awards to be presented at our Holiday Party in San Francisco, Saturday, December 7, 2013, at the lovely Hotel Monaco. The invitations for the Holiday Party will be sent out soon, and we hope you will put this date on your calendar and attend this festive occasion in honor of our award recipients!

The awards and recipients are as follows. Of course, much more will be said about each at the Holiday Party:

“Outstanding Service to Family Law”: Marge Slabach, CFLS, and a retired Commissioner from San Fran-cisco. This award is given to individu-als, including non-lawyers, who have provided extraordinary service to the family law community during his/her careers. Marge has been extremely active in the family law community,

participating in educational programs and many other activities.

“Hall of Fame”: Dawn Gray, CFLS, from Grass Valley. This award is given to one who has made out-standing contributions to the family law specialty and practice of family law through activities such as presenting at continuing legal education programs, writing articles, and preparing amicus briefs, and who promotes the highest ethical and legal standards for the practice of family law. Among many contributions, Dawn, of course, is co-author with Stephen Wagner of the treatise “Complex Issues in California Family Law.”

“The Sterling”: Frieda Gordon, CFLS, from Los Angeles. This award is given to an individual or entity who has demonstrated a sustained and extra ordinary commitment and ser-vice to ACFLS. Frieda has served as President of ACFLS and editor of the ACFLS Newsletters (before it became The Specialist) and has served in numer-ous other capacities on the board for many years. Among her many activities on behalf of ACFLS, she was active as the ACFLS representative to the Coun-cil of Community Property States and spearheaded a series of Minor’s Counsel round tables for ACFLS around the state that led to the drafting and passage of extended amendments to Family Code § 3151.

The Holiday Party is also the occa-sion when the new ACFLS board is sworn in and the transition of officers and committee chairs and members begins. Please plan to attend and learn more about the award recipients and see the new board sworn in. You can also do some gift shopping on nearby Union Square!

Departing Board MembersThe Nominations Committee, whose chair is our vice-president Jill Barr, has been hard at work over the summer finding out about board members who wanted to rotate off the board, or change board positions, and then recruiting replacements. Our revised bylaws provide for most board mem-bers to have one-year terms and there is a limit of three years in any one posi-tion on the board. The concept is to strengthen the board by not being too dependent on any one person serving on the board or in any single position and having board members rotate on and off the board as their time permits. It also provides more opportunities for service and leadership for our many talented members (631 at last count) who are certified family law specialists all over the state.

The following board members are rotating off the board. We are so grateful for their service, and we hope they will come back to serve again in the future:

Shauna Chastain from Fairfield, who served as both Bay Area Director and Associate Bay Area Director.

Richard Gould-Saltman from Los Angeles, who served as both Editor of “The Specialist” and as Associate Editor.

Camille Hemmer from Sacramento, who served as Education Chair.

John Hodson from Vacaville, who served as Legislation Chair.

Wilma Presley from Orange, who served as the first Chapter Director for Orange County and also probationary chair during the time before Orange County became a chapter.

Linda Seinturier from Redding, who served as Outreach Chair.

President’s MessageLynette Berg Robe, cfls

ACFLS President

Los Angeles County

[email protected]

Continued on page 25 (President)

Fall 2013, No� 3 PAGE 4 ACFLS Family Law SpecialistFall 2013, No� 3 PAGE 4 ACFLS Family Law Specialist

David Shebby is a Certified Family Law Specialist and founding partner of Jacobson Scully Shebby, LLP.

He received his J.D. from Stanford Law School in 1993. He practices exclusively in the area of family law. Mr. Shebby currently serves as a member of the

Board of Directors for the Harriett Buhai Center for Family Law. He is also a member of the Los Angeles

County Bar Association’s Family Law Executive Committee. Los Angeles Magazine recognized him as a Southern California “Super Lawyer” for 2010, 2011,

2012, 2013, and 2014. He has published articles and lectured for the State Bar of California, the Los Angeles County Bar Association,

the Beverly Hills Bar Association, the American Inns of Court, and other organizations.

Mr. Shebby has served his Catholic community as the chair of the Parish Council at St. Mark

Catholic Church in Venice, California, and is a member of the Los Angeles Catholic

Lawyers Association and a volunteer for Christian Legal Aid of Los Angeles.

In addition, he founded and ran a pro bono legal clinic at Miriam’s House, a sober-living

facility for women and their children. He enjoys hunting and fishing, and remains in search of the (thus-far elusive) 100-pound tuna.

ShebbyContinued from page 1

I. California’s Domestic Violence Prevention ActThe basic parameters of the Domestic Violence Prevention Act, Family Code § 6200 et seq., are well known to most family law practitioners. Courts are empowered to issue injunctions prohibiting a variety of conduct upon a showing of abuse. To obtain a Temporary Protective Order, the appli-cant may proceed entirely without notice to the restrained party. No showing of good cause for failing to provide notice is required.

The burden of proof to obtain a Temporary Protective Order is low. An injunction may issue upon the presentation of an affidavit setting forth “reasonable proof of a past act or acts of abuse.” 5

Family Code § 6203 defines “abuse” – the necessary predicate for most of the injunctions and other remedies available under the Domestic Violence Prevention Act – as:

(a) Intentionally or recklessly . . . caus[ing] or attempt[ing] to cause bodily injury.

(b) Sexual assault.(c) . . . plac[ing] a person in reasonable apprehension of

imminent serious bodily injury to that person or to another.

(d) . . . engag[ing] in any behavior that has been or could be enjoined pursuant to Section 6320.

Behaviors that may be enjoined ex parte pursuant to Family Code § 6320 include, without limitation, harass-ing, telephoning, contacting directly or indirectly, coming within a specified distance of, or disturbing the peace of the other party. Accordingly, while mere “badgering” does not constitute abuse,6 the conduct necessary to support finding of “abuse,” necessary for the issuance of a Protective Order, need not include violence or threats of violence.7 “To the contrary, section 6320 lists several types of nonviolent conduct that may constitute abuse within the meaning of the DVPA. . . .” 8

Upon the issuance of a Protective Order pursuant to the Domestic Violence Prevention Act, including upon the issuance of a Temporary Protective Order obtained without notice, the restrained person is disqualified from owning, possessing, purchasing, or receiving firearms or ammuni-tion.9 Violation of this firearm prohibition is a “public offense, which shall be punishable by imprisonment in a county jail not exceeding one year or in the state prison, by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine.” 10 Persons subject to Protective Orders, including no-notice Temporary Orders, must relinquish their firearms “upon request of any law enforcement officer” following service of the Protective Order or, in the absence of such a request, within 24 hours of being served with the Protective Order.11 Except in extremely limited circumstances, i.e. when firearm possession is necessary as a condition of continued employ-ment and the current employer is unable to reassign the restrained person to another position where a firearm is unnecessary, courts are without jurisdiction to modify the firearm restriction.12

II. California’s Domestic Violence Prevention Act Goes Beyond Federal Law Restricting Firearm Possession Following Issuance of Domestic Violence Protective OrdersCalifornia’s restriction on firearm possession by persons subject to Protective Orders is significantly broader than the analogous federal statute. In 1994, Congress estab-lished a nationwide prohibition on firearm and ammunition possession by persons subject to certain domestic violence injunctions.13 In doing so, however, Congress specifically

ACFLS Family Law Specialist PAGE 5 Fall 2013, No� 3ACFLS Family Law Specialist PAGE 5 Fall 2013, No� 3

Continued on page 6 (Shebby)

ensured that due process rights would be afforded prior to the federal firearm prohibition taking effect. As such, 18 U.S.C. § 922(g)(8) prohibits possession of a firearm only by persons who are subject to certain Protective Orders that “issue[] after a hearing of which such person received actual notice, and at which such person had an opportunity to participate.” California’s firearm restriction contains no explicit reference to the due process rights of restrained persons, and applies even when such rights have not been afforded.

III. Firearms Ownership as a Fundamental Constitutional RightThe Second Amendment to the United States Constitution provides: “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” 14 In District of Columbia v. Heller, 554 U.S. 570 (2008), the United States Supreme Court recognized that the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” 15 Accordingly, the Court held District of Columbia statutes prohibiting possession of handguns in the home, and requiring long guns in the home to be rendered inoperable at all times, to be uncon stitutional, as they amounted to an unconstitutional “absolute prohibition of handguns held and used for self-defense in the home.” 16 Thereafter, in McDonald v. City of Chicago, 561 U.S. 3025 (2010), the United States Supreme Court struck down ordinances in two cities that, as Washington D.C. attempted in Heller, effectively precluded most residents from possessing firearms for self-defense in their homes. In doing so, the Court held that the right to keep and bear arms for self-defense is fundamental and that the Due Process Clause of the Fourteenth Amendment thereby “incorporates the Second Amendment right, recognized in Heller” against states and municipalities.17

IV. Levels of Scrutiny and Permissible Limitations on Fundamental Constitutional RightsAlthough the right to keep and bear firearms for self-defense is a fundamental constitutional right, like other fundamental rights (e.g., freedom of speech and freedom of religion) it is not without limits. To the contrary, the Supreme Court in Heller explicitly approved the disqualification of certain classes of people from exercising their Second Amend-ment rights. The Heller Court explained that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the com-mercial sale of arms.” 18 In a footnote, the Court further explained: “[w]e identify these presumptively lawful regula-tory measures only as examples; our list does not purport to be exhaustive.” 19

Subsequent to the Heller decision, there have been

scores of challenges to various firearm disqualification statutes on constitutional grounds. Virtually all have failed. These have included unsuccessful challenges to state and federal statutes banning possession of firearms by felons,20 nonviolent felons,21 misdemeanants,22 those adjudged to be drug or alcohol abusers,23 juvenile offenders,24 and persons subject to domestic violence protective orders issued after notice and an opportunity to be heard.25 But no post-Heller decision has been found addressing the constitutionality of a firearm disqualification provision in a domestic violence restraining order issued without notice or opportunity for hearing.

Curiously, the Heller Court explicitly declined to set forth the proper level of judicial scrutiny for firearm regulations other than to explicitly reject both the rational basis review 26 and Justice Breyer’s proposal for an “interest-balancing inquiry.” 27

Most courts interpreting firearm disqualification statutes post-Heller and McDonald have refused to apply a strict scrutiny analysis, which would require that the statute be narrowly tailored to meet a compelling government interest.28 In declining to apply a strict scrutiny analysis, courts often note that not all laws that infringe on fundamental rights are afforded strict scrutiny. To the contrary, “the level of scrutiny [applied] depends on the nature of the conduct being regulated and the degree to which the challenged law burdens the right.” 29 Accordingly, for example, “content-based speech restriction[s]” are subject to strict scrutiny, but “content-neutral time, place, and manner regulations use[] an intermediate level of scrutiny.” 30

In the context of firearm restrictions, because the post-Heller disqualification statutes have applied only to particular classes of people (such as felons or drug abusers), or to specific regulations that do not prohibit firearm possession in the home (such as prohibitions on concealed carry), courts often deem the burdens on the funda mental Second Amendment right to possess a firearm in the home for self-defense sufficiently low as to warrant only intermediate scrutiny. For example, in Heller v. District of Columbia (Heller II) 698 F. Supp. 2d 179 (D.C. 2010), rev’d on other grounds, 670 F. 3d. 1244 (2011), the court used an intermediate scrutiny test to uphold District of Columbia regulations of firearm ownership, established post-Heller, such as requiring fingerprinting, firearms training, and a vision test, on the ground that the regulations imposed by the District did not prohibit the core Second Amendment right to possess a firearm for self-defense.

To the extent they have articulated a basis of scrutiny, the vast majority of courts post-Heller and McDonald have followed the Heller II court’s use of intermediate scrutiny. This test requires only a “reasonable fit” between the challenged regulation and a “substantial” governmental objective.31 The “fit” will be held “reasonable” “so long as the means chosen are not substantially broader than necessary to achieve the government’s interest.” 32


ShebbyContinued from page 5

As set forth above, in using intermediate scrutiny to uphold various firearm disqualification statutes, the cases have gener ally addressed either the public safety exceptions explicitly recognized by the Court (e.g., felons and the mentally ill) or those the lower courts deemed sufficiently similar (e.g., misdemeanants, substance abusers, juvenile offenders).

There is little doubt that a disqualification statute prohibiting firearms possession by persons subject to a Temporary Protective Order, if issued after notice and an opportunity to be heard, would survive intermediate scrutiny. There is a “reasonable fit” between a short term firearms disquali fication and the substantial governmental interest in protecting victims of domestic violence. More-over, at least if there are findings of violence or threats of violence, a firearms disqualification upon the issuance of a Temporary Protective Order issued after notice and an opportunity to be heard seems almost certain to survive strict scrutiny as well.33 Protecting victims of domestic violence is undoubtedly a compelling government interest. And a Temporary Protective Order issued after notice and an opportunity to be heard, in the context of violence or threatened violence, is narrowly tailored to address that compelling interest.34

But does California’s current no-notice statute pass muster under either standard of review? Under a strict scrutiny analysis, almost certainly not. Because the firearms prohibition applies to Temporary Protective Orders issued where there is neither violence nor a threat thereof, and because there is no need to ever give the restrained party advance notice before obtaining a Temporary Protective Order, the Domestic Violence Prevention Act – enacted before Heller deemed firearm ownership a fundamental constitutional right – does not even attempt to narrowly tailor the constitutional deprivation it imposes. Under an intermediate scrutiny analysis, however, the result might be different. The short term nature of the firearms disqualification might convince courts that the statute is a “reasonable fit” to an unarguably “substantial” governmental interest. While the firearms disqualification may be over-broad, it may not be “substantially broader than necessary” to reduce domestic violence.

V. The Domestic Violence Prevention Act Violates the Right to Due ProcessAs currently drafted, the Domestic Violence Prevention Act fails to satisfy the Due Process requirements of the United States and California Constitutions. It is a basic constitu-tional principle that takings and deprivations of liberty or property generally require advance notice and the oppor-tunity to be heard.35 Indeed, a “‘root requirement’ of due process is that an individual be given an opportunity for a hearing before being deprived of any significant liberty or property interest, except for extraordinary situations where some valid governmental interest is at stake that justifies

postponing the hearing until after the event.” 36 In such extraordinary situations, statutes must be “narrowly drawn to further [the governmental] interest.” 37

Such “extraordinary situations” do exist. To sustain a finding of an “extraordinary situation” sufficient to permit government action without advance notice, “an imminent danger to persons or property” must be found.38 “Extra-ordinary situations” have been held to exist in a number of contexts, including suspension of a business permit for a residential care facility for the elderly,39 suspension of the license of a private patrol service,40 seizure of a vessel used to smuggle drugs,41 seizure of contaminated food,42 and seizure of misbranded drugs.43

Do the provisions of the Domestic Violence Prevention Act mandating firearms disqualification for all persons subject to a Temporary Protective Order satisfy the “extraordinary situation” test? They do not. There is no question that “imminent danger” exists in some domestic violence cases, thereby permitting a temporary firearm disqualification without notice and an opportunity to be heard. But the Domestic Violence Prevention Act paints with an extraordinarily broad brush. First, it permits no-notice Temporary Protective Orders to issue even in the absence of exigent circumstances. In addition, the firearms prohibitions are mandatory, even in cases where neither actual nor threatened violence has been alleged and there accordingly has been no finding of “an imminent danger to persons or property.” Finally, the burden of proof is low. Only a showing of “reasonable proof” is required to obtain a Temporary Protective Order. As such, the provisions of the Domestic Violence Prevention Act mandating firearm disqualification following the issuance of all Temporary Protective Orders are neither “narrowly drawn to further [the governmental] interest” nor limited to “extra ordinary situations” where there is “imminent danger to persons or property.” The Domestic Violence Prevention Act thus fails to satisfy the Due Process requirements of the United States Constitution.

ConclusionIn our efforts to address issues of pressing social and legal importance, particularly those such as domestic violence which disproportionately impact the most vulnerable members of our society, we must not sidestep applicable constitutional analyses. After all, constitutions exist to protect those with unpopular viewpoints against majority rule, and in many instances the unpopular or minority viewpoints happen to be those held by vulnerable members of society. Ensuring that the laws designed to punish and deter domestic violence pass constitutional muster can only bolster the legitimacy of those laws and strengthen their sociological impact. At the time the Domestic Violence Prevention Act was enacted, the Supreme Court had not yet held the right to keep and bear firearms for self-defense is a fundamental constitutional right. Now that the Court has done so, appropriate modifications to the Domestic Violence Prevention Act are required.


Endnotes1 “Hey, Joe, where you going with that gun in your hand?” Roberts, Billy; Hey Joe, Where You Gonna Go? (1962)2 See e.g. Linda Saltzman, et al., Weapon Involvement and Injury Outcomes in Family and Intimate Assaults, 267 JAMA, 3043-3047 (1992); Michelle N. Deutchmen, Getting the Guns: Implemen-tation and Enforcement Problems with California Senate Bill 218, 75 S. Cal. L. Rev. 185, 186-189 (2001).3 Although beyond the scope of this article, the analysis set forth herein may be equally applicable to no-notice civil harassment junctions obtained pursuant to Code of Civil Procedure § 527.6.4 Family Code §§ 241, 6300. After notice and a hearing, courts may issue injunctions for an initial duration of up to five years. Family Code § 6345.5 Family Code § 6300.6 S.M. v. E.P. (2010) 184 Cal. App.4th 1249, 1266.7 Conness v. Satram (2004) 122 Cal. App.4th 197, 201-02 (“[T]he requisite abuse need not be actual infliction of physical injury or assault”); Ritchie v. Conrad (2004) 115 Cal. App.4th 1275, 1290-91 ([T]hat pattern of unwanted phone calls or letters may support the same set of prohibitions in the initial protective order as one predicated on a series of violent beatings.”)8 In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1496.9 Family Code § 6389(a).

10 Penal Code § 29825.11 Family Code § 6389(c)(2).12 Family Code § 6389(h); Ritchie v. Konrad (2004) 115 Cal.App.4th 1275, 1293-1299.13 18 U.S.C. § 922(g)(8).14 U.S. CONST. amend. II.15 Heller, 554 U.S. at 592.16 Heller, 554 U.S. at 573-574, 636.17 McDonald 561 U.S. 3025 (2010).18 Heller, 554 U.S. at 626-27 (internal citations omitted).19 Heller, 554 U.S. at 627, fn. 26.20 E.g., Farmer v. State, Dept. of Law, Office of Attorney General, 235 P.3d 1012 (Alaska 2010).21 State v. Whitaker, 689 S.E. 2d 395, 405 (N.C. 2009).22 People v. Flores (2008) 169 Cal. App. 4th 568, 575; United States v. White, 593 F.3d. 1199, 1206 (11th Cir. 2010).23 State v. Richard, 298 S.W. 3d 529, 532 (Mo. 2009); United States v. Richard, 350 F. App’x 252, 260 (10th Cir. 2009).24 People v. Villa (2009) 178 Cal.App.4th 443, 449.25 Crespo v. Crespo, 972 A.2d 1169, 1179 (N.J. 2009) (aff’d 989 A.2d 827 (2010)).26 Heller, 554 U.S. at 628, fn. 27.27 Heller, 554 U.S. at 634.28 Herrington v. U.S., 6 A.3d 1237, 1242, fn 17. (D.C. 2010).29 United States v. Chester, 628 F.3d 673, 682 (4th Cir. 2010).

30 Chester, 628 F.3d at 682.31 Board of Trustees of State University of NY v. Fox, 492 U.S. 469, 480 (1989).32 Ward v. Rock Against Racism, 491 U.S. 781, 800 (1989) (emphasis added).33 United States v. Erwin, No. 1:07-CR-556 (LEK), 2008 WL4534058 at *2.34 Beyond the scope of this article is whether a statute that compels firearms disqualification after the issuance of a Protective Order following notice and an opportunity to be heard, but without a finding of violence or threat of violence, would survive a strict scrutiny analysis.35 North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 606 (1975); Magallan v. Superior Court, 192 Cal.App. 4th (2011) 1444, 1463, review denied, (June 8, 2011).36 People v. Lara (2010) 48 Cal.4th 216, 229.37 Trihedron Internat. Assurance, Ltd. v. Superior Court (1990) 218 Cal. App.3d 934, 947.38 Gonzales v. Superior Court (1986) 180 Cal. App.3d 1116, 1128.39 Habrun v. Dep’t of Soc. Servs. (1983) 145 Cal. App.3d 318, 321-22.40 Stewart v. County of San Mateo (1966) 246 Cal.App.2d 273, 289.41 Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 676-680 (1974).42 North American Storage Co. v. Chicago, 211 U.S. 306 (1908).43 Ewing v. Mytinger & Casselberry, 339 U.S. 594 (1950) n

SAV E T H E DAT E 2013 ACFLS HOLIDAY PARTY

Honoring:Honorable Marjorie A. Slabach, Ret., CFLS, from

San Francisco – Outstanding Service to Family LawDawn Gray, CFLS, from Grass Valley – Hall of FameFrieda Gordon, CFLS, from Los Angeles – The SterlingJoin us at our annual Holiday Party on Saturday, December 7, 2013, at the lovely Hotel Monaco, 501 Geary Street, near Union Square, in San Francisco, at 6 p.m. for cocktails and hors d'oeuvres, and at 7:30 p.m. for dinner. Put this date on your calendar and attend this festive occasion in honor of our award recipients, our new board, and our departing board members!

Fall 2013, No� 3 PAGE 8 ACFLS Family Law Specialist

2013 ACFLS BOARD OF DIRECTORSPresidentLynette Berg Robe12711 Ventura Blvd., Suite 315Studio City, CA 91604818-980-9964 • Fax: [email protected]

Vice-PresidentJill L. BarrHemmer & Barr555 University Avenue, Suite 125Sacramento, CA 95825916-922-8500 • Fax: [email protected]

SecretaryPatricia A. Rigdon301 E. Colorado Blvd., Suite 706Pasadena, CA 91101626-405-0006 • Fax: [email protected]

TreasurerKaren C. FreitasParker Milliken Clark O’Hara & Samuelian555 South Flower Street, Floor 30Los Angeles, CA 90071213-683-6503 • Fax: [email protected]

Immediate Past PresidentDiane WasznickyBartholomew & Wasznicky LLP4740 Folsom Blvd., Sacramento, CA 95819916-455-5200 • Fax : 916-455-6300diane@divorcewithrespect .com

Journal EditorRichard Gould-SaltmanGould-Saltman Law Offices PC444 Flower Street, Suite 1700Los Angeles, CA 90071213-489-3900 • Fax: [email protected]

Associate Journal EditorDebra S. FrankDebra S. Frank, APLC2029 Century Park East, Suite 1400Los Angeles, CA 90067310-277-5121 • Fax: [email protected]

Legislative DirectorJohn D. HodsonHodson & Mullin601 Buck Avenue, Vacaville, CA 95688707-452-9606 • Fax: [email protected]

Associate Legislative DirectorDianne M. Fetzer455 University Avenue, Suite 201Sacramento, CA 95825916-565-1200 • Fax: [email protected]

Technology DirectorSeth Kramer4223 Glencoe Avenue, Suite A225Marina Del Rey, CA 90292310-474-3030 • Fax: [email protected]

Associate Technology DirectorChristopher C. MelcherWalzer & Melcher LLP21700 Oxnard Street, Suite 2080Woodland Hills, CA 91367818-591-3700 • Fax: 818-591-3774e-mail: [email protected]

Education DirectorCamille HemmerHemmer & Barr555 University Avenue, Suite 125Sacramento, CA 95825916-922-8500 • Fax: [email protected]

Membership and Benefits DirectorJoseph J. Bell350 Crown Point Circle, Suite 250Grass Valley, CA 95945530-272-7477 or [email protected]

Outreach DirectorLinda L. Seinturier1308 Placer StreetRedding, CA 96001530-243-0253 • Fax: [email protected]

Chapter Director 1Sherry Peterson11875 Dublin Blvd., Suite A104Dublin, CA 94568925-833-6990 • Fax : [email protected]

Associate Chapter Director 1Shauna L. Chastain711 Jefferson Street, Suite 206Fairfield, CA 94533707-422-9661 • Fax: [email protected]

Chapter Director 2Fredrick (Rick) Cohen2020 Hurley Way, Suite 200Sacramento, CA 95825916-925-7177 • Fax: 916-925-7117rcohen@cohenattorneys .com

Associate Chapter Director 2Stephanie Williams1420 River Park Drive, Suite 220Sacramento, CA 95815916-927-8112 • Fax: [email protected]

Chapter Director 3Wilma E. PresleyLaw Offices of Presley & Goodrow333 City Blvd. W, Suite 1420Orange, CA 92868714-939-1420 • Fax: [email protected]

Associate Chapter Director 3Dorie A. RogersLaw Offices of Dorie A. Rogers, APC790 The City Drive S, Suite 120Orange, CA 92868714-740-1160 • Fax : 714-464-5368drogers@drfamilylaw .com

Regional DirectorGeorge SeideAdelman & Seide LLP23975 Park Sorrento, Suite 420Calabasas, CA 91302818-222-0010 • Fax: 818-222-0310gseide@adelman-seide .com

Coordinating DirectorSterling E. MyersHelms & Myers150 N Santa Anita Avenue, Suite 685Arcadia, CA, 91006626-445-1177 • Fax: [email protected]

Coordinating DirectorLeslie Ellen Shear16133 Ventura Blvd., Floor 7Encino, CA 91436818-501-3691 • Fax: [email protected]

Coordinating DirectorLulu Wong1303 Jefferson Street, Suite 710BNapa, CA 94559707-226-5565 • Fax : [email protected]

ACFLS Family Law Specialist PAGE 9 Fall 2013, No� 3

SLATE OF NOMINEES AND BALLOT FOR THE 2014 ACFLS BOARD

PositionName of

Nominee or Office Holder

Explanatory NotesVote for

Nom- inee W

rite-

in

President Lynette Berg Robe (Los Angeles)

Current President Elected for a 2-year term starting 2012-2014

✗

Vice-President Jill L. Barr (Sacramento)

Current Vice-President Elected for a 2-year term starting 2012-2014

✗

Treasurer Karen Freitas (Los Angeles)

Current Treasurer Nominated for a 2-year term starting 2013-2015

✗

Secretary Anne-Florence B. Davies (Oakland)

Nominated for a 1-year term starting 2013

Immediate Past- President

Diane Wasznicky (Sacramento)

2-year term starting 2012-2014 (Automatic) ✗

Newsletter Editor

Debra S. Frank (Los Angeles)

Current Associate Editor Nominated for a 1-year term starting 2013

Associate Newsletter Editor

Christine Gilles (Pasadena)

New to Board Nominated for a 1-year term starting 2013

Legislative Director

Dianne Fetzer (Sacramento)

Current Associate Legislative Director Nominated for a 1-year term starting 2013

Associate Legislative Director

Michele Brown (San Diego)


Technology Director

Mark Ressa (San Ramon)


Associate Technology Director

Seth Kramer (Los Angeles)

Current Technology Director Nominated for a 1-year term starting 2013

Education Director

Chris Melcher (Los Angeles)

Current Associate Technology Director Nominated for a 1-year term starting 2013

Membership & Marketing Director

Paul Brimberry (Sacramento)


PositionName of

Nominee or Office Holder

Explanatory NotesVote for

Nom- inee W

rite-

in

Outreach Director

Teresa Merzoian (Hanford)


Chapter Director (1)

Sherry Peterson (Dublin)

Current Chapter Director (1) Nominated for a 1-year term starting 2013 This is her second term.

Associate Chapter Director (1)

Renee Ross (Pleasanton)



Fredrick (Rick) Cohen (Sacramento)

Current Chapter Director (2) Nominated for a 1-year term starting 2013. This is his second term.


Stephanie Williams (Sacramento)

Current Associate Director Nominated for a 1-year term starting 2013


Dorie Rogers (Orange)

Current Associate Chapter Director (3) Nominated for a 1-year term starting 2013


Jason Schwartz (Orange)

New to Board, Nominated for a 1-year term starting 2013

Regional Director

Patricia Rigdon (Pasadena)

Nominated for a 1-year term starting 2013

Coordinating Director (1)

To be appointed by the President





Write-in Nominee Position

Pursuant to section 7.06 of the “Bylaws of the Association of Certified Family Law Specialists,” the Nominating Committee has met and selected a slate of officers as set forth in the ballot above.

Pursuant to section 7.06, the ballot shall contain a provision for write-in member candidates.

Pursuant to section 7.05, the ballot shall contain the names of any members nominated for office by an application signed by at least ten other Corporation members, provided said application is received by the Secretary of the Corporation at least ten days prior to the mailing of the ballots. As of the date of going to publication for the ACFLS Specialist, no such application has been received.

If received by the Secretary by October 15th, any such application will be reflected on the ballot being mailed out.

Please return your ballot to ACFLS Executive Director Dee Rolewicz, at 1500 W. El Camino Ave., #158, Sacramento, CA 95833. Ballots must be received by Sunday, December 1, 2013, to be counted. Only current members in good standing may vote. Place your ballot in an inner envelope, if you desire, but be sure your name is on the outside of the mailing envelope so that your voting status may be confirmed.

(NOTE: Checked boxes indicate previously-elected officers who have two-year terms and are shown for information only.)


AuthorContinued from page 10

Dad, really, we swear it wasn’t our fault! Having raised three daughters, all of whom are now grown, I cannot begin to recall how many times those words were

spoken in our home. Maybe I’m just mellowing with age, but I’m ready to concede the possibility that on one or two occasions it really wasn’t their fault. I am, however, still not buying that the broken couch in our living room, discovered when my wife and I returned home after a long weekend, happened in a vacuum! This little stroll down memory lane is not intended to finally learn what happened to the couch, but to emphasize that “fault,” not unlike “truth” and “justice,” oftentimes lies in the eye of the beholder. This is especially the case within the context of a family law proceeding.

Prior to 1970, a divorce proceeding in California could only be brought “for cause.” As was the case in many other states, California adhered to “. . . [t]he traditional view . . . that a divorce would be granted only for some marital fault of the defendant. . . .” 1 Doing a quick online search I came across Merriam-Webster defining fault as “. . . responsibility for some

wrongdoing or failure” and a Thesaurus listing “culpability . . . [and] guilt . . .” among its synonyms. According to Black’s Law Dictionary, fault refers to “. . . an act to which blame, censure, impropriety, shortcoming or culpability attaches.” All consistent with those fault-based grounds for divorce 2 which California recognized under its prior law.

Being old enough to have had the experience of practicing during the fault era I can attest to the fact that the prior law tended to encourage a rather creative interpretation of events, some degree of selective memory and testimony which came precariously close to perjury. In other words, the atmosphere surrounding a divorce practice was anything but warm and fuzzy and divorce court more often than not resembled a battleground. The legislature eventually recognized that there might be a better way and, finding “. . . the whole statutory scheme [to be] unrealistic . . . promoted hate, scorn, bitterness and acrimony, . . .” 3 repudiated the fault theory of divorce with the enactment of The Family Law Act. While I would agree with the overwhelming consensus that the concept of no fault divorce was a positive development, it has on occasion given rise to some questionable results.

A few years ago I was called upon to assist with a case which, at first blush, seemed fairly straightforward. For reasons of confidentiality (not making any attempt at creativity and knowing full well that I will be accused of being way too cute) I will, during the course of this article, refer to the husband and wife as Jack and Jill. Jack, it seems, had been going

“up the hill” with another woman and Jill eventually got wind of it. In an effort to make amends and show his commitment to their marriage, Jack executed a written agreement which provided that should this ever happen again he would transfer title to a parcel of real estate, previously held in both names, to Jill. I know that none of you seasoned practitioners will be shocked to learn that Jack did wander back “up the hill,” but what is shocking is that, true to his word, he transferred title to Jill. Not surprisingly, Jill filed for dissolution and asked that the property be confirmed to her, as her separate property. Jack, by this time having had enough time to assuage his conscience, retained counsel who argued that the agreement was void, citing Diosdado v. Diosdado 4 and In re Marriage of Mehren & Dargan.5 I should at this juncture, in the interest of full disclosure, admit to a certain “libertarian” bias when it comes to courts telling couples what they may or may not agree to within the confines of their relationship. I must further confess that after reading these cases I came to the inescapable

Too Much of a Good Thing“No Fault” Taken to its Most Illogical Extreme

Arnold David Breyer, cfls

Siskiyou County

[email protected] • www.family-law-research.com

Mr. Breyer is a Certified Family Law Specialist. In 2002 he retired after 35 years of active trial practice. He now provides litigation support and consultation to

other family law attorneys throughout California, with an emphasis on research assistance and the preparation of trial briefs and points & authorities.

Mr. Breyer resides on the Island of Kauai, but continues to maintain his office in Northern California.


Continued on page 17 (Breyer)

conclusion that should Dave Letterman expand his “top ten” list to include “outrageously stupid cases,” both would be on it.

Donna and Manuel Diosdado were married in 1988. After several years of what she thought to be marital bliss Donna discovered that Manuel had been having an affair. In an effort to “. . . preserve . . . [the] marital relationship between them . . . [and acknowledging] that the parties’ marriage is intended to be an exclusive relationship . . . premised upon the values of . . . fidelity, and mutual trust . . . [and that any] breach of fidelity by one party . . . may cause serious emotional, physical and financial injury to the other” 6 she and Manuel entered into an agreement not dissimilar to the one entered into between Jack and Jill. According to the terms of the agreement should either be unfaithful, the unfaithful party would pay to the other, as “liquidated damages” the sum of $50,000, “. . . over and above . . . any . . . obligation imposed by law as a result of [a family law proceeding brought by the other].7 Unfortunately, like our boy Jack, Manuel was unable to remain faithful. Also just like Jack, he balked when Donna asked that the court order that he pay her fifty grand.

Christopher Dargan’s weakness was not “other women”; it was cocaine. Anyone familiar with an addiction, whether personally or through a family member or friend, knows the havoc it can wreak. Monica Mehren was no exception. After having been separated as a result of one of his many bouts with addiction, Christopher returned home. Upon his return he and Monica agreed that the resumption of their marriage was conditioned upon Christopher abstaining “. . . from the deliber-ate, intentional use . . . of any mind altering . . . substance. . . . In the event of such . . . use . . . [Christopher] agrees that he will forfeit all of his right, title and interest in [certain described property].” 8 Unfortunately for all concerned Christopher could not “stay clean” and Monica filed for dissolution requesting that the court confirm, as her separate property, all of the property which was to be transferred to her pursuant to the agreement.

I find it difficult to argue with the intent behind either agreement. Donna’s goal was to encourage Manuel to remain faithful, thereby preserving their marriage, while Monica hoped to provide Christopher with an added incentive to kick his addiction and save not only their marriage, but possibly his life. Reasonable goals that to my mind should not be objectionable to anyone. Unfortunately for Donna and Monica, the justices hearing Diosdado and Mehrens, saw it differently. Misguidedly relying upon an opinion involving a marital tort action 9 and adopting a position so absolutist that it borders on the absurd, the justices in Diosdado tossed Donna out of court. Two years later the court in Mehrens treated Monica in similar fashion. Both cases downplayed the parties’ right to contract as guaranteed by the state and federal constitutions. Instead, emphasizing “. . . the public policy underlying Califor-nia’s no-fault divorce laws,” 10 the agreements were held to be unenforceable.

The courts’ error lay in confusing the prohibition against the consideration of fault within the context of a divorce proceeding, an appropriate use of the state’s power to regulate conduct unique to the marital relationship, with the recognition and enforcement of a valid, arms’ length transac-tion entered into between spouses.11 The bizarre conclusion,

arrived at by both courts, is that a conscious effort on the part of a husband or wife to discourage their spouse’s infidelity and/or substance abuse, in which the potential “offender” spouse participates by agreeing, is nevertheless against public policy in the State of California. Certainly, this is not what the legislature intended. To illustrate just how silly the ration-ale behind Diosdado and Mehrens is, let us take a moment and imagine an alternative reality where neither Donna, nor Monica are married. Rather, they are cohabiting with Manuel and Christopher, respectively. Except for that slight difference everything else is identical. Do you seriously think for an instant a court hearing a civil action would dare refer to these cohabitation agreements as being against public policy ?!?!

In truth and in fact, the statutory prohibition rendering “evidence of specific acts of misconduct . . . inadmissible” 12 is by no means absolute. The original legislation 13 expressly excluded matters involving child custody and visitation, while the current amendment excludes any and all fault-related matter “. . . otherwise provided by statute . . .” 14 Consistent with this we have seen fault re-surface in the line of cases dealing with the fiduciary relationship existing between spouses,15 a relationship both Manuel and Christopher breached when they violated the agreements they had entered into with Donna and Monica. The correlation between no fault divorce and the fiduciary duties inherent in a marital relationship was also the subject of a recent

“Listserv” exchange concerning a husband who systematically plundered the community estate in order to provide his girlfriend with a lavish lifestyle.16 The question presented was whether or not his conduct constituted a breach of the fiduciary relationship, so egregious, that his wife would be entitled to receive a “100% penalty” as provided for in Family Code § 1101(h).17 Among the comments received was the observation that the other side would likely argue that awarding a penalty would “. . . [constitute] a back door theory for producing the same outcome as a pre–Family Law Act fault system divorce in which the money goes to the injured party . . . [which is] what no-fault was adopted to prevent, and still prohibits”.18 I have no doubt that this is precisely the argument the other side would make. In making that argument, however, they would be just as wrongheaded as were the justices in Diosdado and Mehrens.

The no fault divorce statutes originated with the recogni-tion that “. . . marriage is a delicate interpersonal relationship which may break down for any number of reasons, usually a combination of circumstances involving responsibility – or perhaps the lack of it – on the part of both parties.” 19 No longer would unhappy couples need to fabricate grounds and risk perjury in order to terminate their marriage. Nor would their conduct within the day to day confines of their marital relationship, no matter how objectionable, have any relevance to the division of the community estate. All for the admirable purpose of eliminating the psychological bloodbath that had become divorce litigation in California and elsewhere.

Nothing in the legislative scheme, however, remotely sug-gests that behavior in conscious disregard of the fiduciary duty owed to one’s spouse is to be tolerated, let alone rewarded,


In contested custody proceedings Courts have the ability to appoint experts to provide information that will assist the Court in making its determination. This is appropriate

“when it appears to the court, at any time before or during “the trial of an action, that expert evidence is or may be required by the court or by any party to the action, (Evidence Code, Section 730) and, specifically in a child custody matter,” where the court determines it is in the best interests of the child.” (Family Code, Section 311(a)).

It has been observed that the “hollowing out” of the

middle class in America risks the development of a “two-tiered” justice system, particularly in family law. This emergent development is most notable in the area of child custody determinations.1

Whether, and under what circumstances, parent parties to a California custody dispute are “entitled” to any sort of evaluative process remains unclear. Marriage of McGinnis 2 strongly suggested that parties, at least in contested move-away cases, were entitled to an evaluation.3 The underlying principal holding in McGinnis, on the other hand, was

Dianna J. Gould-Saltman was appointed as a Judge of the Los Angeles Superior Court in 2010 and is presently

assigned to a family law department in the Pasadena branch. She was admitted to practice in 1985.

For the thirteen years preceding her appointment to the bench, she was partners in Gould-Saltman Law Offices,

LLP, with Richard Gould-Saltman. She is a Certified Family Law Specialist, a Fellow of the American Academy of Matrimonial Lawyers and International Academy of

Matrimonial Lawyers, a former Chair of the Los Angeles County Bar Family Law Section, and a former Chair

of the ABA Section of Family Law Committee on Ethics and Professionalism.

Richard Gould-Saltman graduated from USC Law School and was admitted to practice in 1978.

He has been a Certified Family Law Specialist since 1992 and was

partners with Dianna Gould-Saltman from 1997 to 2010.

What Are the Constraints on Abbreviated Parenting Assessments?

(PART 1)Hon. Dianna J. Gould-Saltman

Judge, Superior Court

Los Angeles County

Richard F. Gould-Saltman, cfls

ACFLS Journal Editor

Los Angeles County • [email protected]


largely gutted by the California Supreme Court’s decision in Marriage of Burgess 4 (1996) 13 Cal.4th 25. Subsequent decisions have eroded or questioned the broad generaliza-tion, drawn from McGinnis, that relocation cases require evaluations under all circumstances. Reversing the Court of Appeal, in Marriage of Brown & Yana (2006) 37 Cal.4th 947,5 the California Supreme Court opined that, absent a prima facie showing by the party opposing a relocation of detriment to the child, a true “non-custodial” parent is not only not entitled to an evaluation, but is not even necessarily entitled to an evidentiary hearing.

Nevertheless, even where not mandated, there remains an across-the-economic-board demand for evaluative services in custody cases. Judicial officers, constrained by a lack of hearing time, lack of budgetary resources, and, in at least some cases, their own perceived or real inexperience in making child custody determinations, not only want data-gathering, but expert recommendations and opinions, to assist them.6 Whether that judicial reluctance is appropriate will be the one of the subjects subject of the second part of this article.

It is a truism of project management that, colloquially, “you can have it cheap, you can have it fast, or you can have it good, but you can’t have all three”: all “projects” are con-strained by this triangle of cost, time, and scope (or quality).7 Current budgets limit the availability of Court Services resources, and the state of the economy limits the availability of private evaluation services to a small segment of the popu-lation. Burgeoning calendars have increased the need for prompt “triage,” “band-aid” and limited-scope services, while, paradoxically, increasing waiting times for their availability. Finally, increasing emphasis has been placed on the scientific foundation, and evidentiary adequacy, of the evaluation and information-gathering processes in child custody proceedings.

Thus, the need for “Brief Focused Assessments” (“BFA’s”).In Los Angeles County, Family Court Services has pro-

vided some form of BFA for a number of years. The process has been called, at various times, a “Fast Track Evaluation,” a “Solution Focused Evaluation,” and now a “Parenting Plan Assessment,” or “PPA,” 8 This process is deliberately not complex.

Originally intended as a “interim” or “first aid” solution, the Los Angeles model originally contemplated that the entire process would be completed within a week of the original determination that it was to be used. As the Los Angeles case load became larger, and the available resources became more strained, the required lead time grew, so that now, at mid-2013, the matter is scheduled at a hearing to be conducted some months later. On the day designated for the evaluation, the parties arrive with the child(ren) at the courthouse at 8:00 a.m. The evaluator reviews the court’s file, then meets with the parties to explain the process, and then meets with each party and each child in some variety of configurations: both parents, each parent with each child, parents alone, children alone. The parties may have the evalu-ator meet briefly with significant collaterals (e.g. new spouses, care-taking relatives) or may speak telephonically with them (e.g. pediatricians, teachers).

In the one-day process, the data gathering concludes around noon and the parties recess for about an hour, after which they meet with the evaluator for a “debriefing.” The evaluator then explains what he or she has learned, what his or her concerns are, and how he or she will likely testify. The parties then have a further opportunity to negotiate any agreements. If there is not a full agreement, the evaluator proceeds to the assigned courtroom, takes the stand between 1:30 and 2:00 PM, and testifies, essentially providing an oral evaluation report. The evaluator is subject to cross-examination and the parties are then permitted to put on any additional witnesses or testimony.

It appears that in those remaining California counties which have sufficient family court services budgets to provide any sort of evaluative services at all, this, or a variation of it, seems to be the only sort of assessment provided by the court. In the remaining “recommending mediation” counties, of course, some model of BFA is combined with the mandated custody dispute resolution/custody mediation services.9

What Is Required of an Abbreviated Evaluation?In 1996 the legislature created Family Code, Section 3117, which required the California Judicial Council to adopt stan-dards for conducting full and partial custody evaluations. The Judicial Council created California Rules of Court, Rule 5.220, which defines a partial evaluation as,”an examination of the health, safety, welfare, and best interest of the child that is limited by court order in either time or scope.”

While the Court may limit the scope of the evaluation, Rule 5.220(e) nevertheless requires that all evaluations include the following:(1) A written explanation of the process that clearly

describes the:(A) Purpose of the evaluation;(B) Procedures used and the time required to gather and

assess information and, if psychological tests will be used, the role of the results in confirming or ques-tioning other information or previous conclusions;

(C) Scope and distribution of the evaluation report;(D) Limitations on the confidentiality of the process;

and(E) Cost and payment responsibility for the evaluation.

(2) Data collection and analysis that are consistent with the requirements of Family Code section 3118; that allow the evaluator to observe and consider each party in compara-ble ways and to substantiate (from multiple sources when possible) interpretations and conclusions regarding each child’s developmental needs; the quality of attachment to each parent and that parent’s social environment; and reactions to the separation, divorce, or parental conflict. This process may include:(A) Reviewing pertinent documents related to custody,

including local police records;(B) Observing parent-child interaction (unless contrain-

dicated to protect the best interest of the child);(C) Interviewing parents conjointly, individually, or both

Continued on page 14 (Gould-Saltman)


Gould-SaltmanContinued from page 13

conjointly and individually (unless contraindicated in cases involving domestic violence), to assess:(i) Capacity for setting age-appropriate limits and

for understanding and responding to the child’s needs;

(ii) History of involvement in caring for the child;(iii) Methods for working toward resolution of the

child custody conflict;(iv) History of child abuse, domestic violence,

substance abuse, and psychiatric illness; and(v) Psychological and social functioning;

(D) Conducting age-appropriate interviews and observa-tion with the children, both parents, stepparents, step- and half-siblings conjointly, separately, or both conjointly and separately, unless contraindicated to protect the best interest of the child;

(E) Collecting relevant corroborating information or documents as permitted by law; and

(F) Consulting with other experts to develop informa-tion that is beyond the evaluator’s scope of practice or area of expertise.

(3) A written or oral presentation of findings that is consis-tent with Family Code section 3111, Family Code section 3118, or Evidence Code section 730. In any presentation of findings, the evaluator must:(A) Summarize the data-gathering procedures, informa-

tion sources, and time spent, and present all relevant information, including information that does not support the conclusions reached;

(B) Describe any limitations in the evaluation that result from unobtainable information, failure of a party to cooperate, or the circumstances of particular interviews;

(C) Only make a custody or visitation recommendation for a party who has been evaluated. This require-ment does not preclude the evaluator from making an interim recommendation that is in the best inter-est of the child; and

(D) Provide clear, detailed recommendations that are consistent with the health, safety, welfare, and best interest of the child if making any recommendations to the court regarding a parenting plan.

CRC 5.220 (h) (“Ethics”) provides:In conducting custody evaluations, including those which

are limited in time and/or scope, all evaluators must do the following:(1) Maintain objectivity, provide and gather balanced infor-

mation for both parties, and control for bias;(2) Protect the confidentiality of the parties and children in

collateral contacts and not release information about the case to any individual except as authorized by the court or statute;

(3) Not offer any recommendations about a party unless that party has been evaluated directly or in consultation with another qualified neutral professional;

(4) Consider the health, safety, welfare, and best interest of the child in all phases of the process, including inter-views with parents, extended family members, counsel for the child, and other interested parties or collateral contacts;

(5) Strive to maintain the confidential relationship between the child who is the subject of an evaluation and his or her treating psychotherapist;

(6) Operate within the limits of the evaluator’s training and experience and disclose any limitations or bias that would affect the evaluator’s ability to conduct the evaluation;

(7) Not pressure children to state a custodial preference;(8) Inform the parties of the evaluator’s reporting require-

ments, including, but not limited to, suspected child abuse and neglect and threats to harm one’s self or another person;

(9) Not disclose any recommendations to the parties, their attorneys, or the attorney for the child before having gathered the information necessary to support the conclusion;

(10) Disclose to the court, parties, attorney for a party, and attorney for the child conflicts of interest or dual relation-ships; and not accept any appointment except by court order or the parties’ stipulation; and

(11) Be sensitive to the socioeconomic status, gender, race, ethnicity, cultural values, religion, family structures, and developmental characteristics of the parties.

What Are the Constraints on Mental Health Professionals in Providing “Abbreviated” Evaluative Services?Two professional organizations have developed professional guidelines of use in addressing the questions we ask: those guidelines were developed in a parallel process with the development of the California Rule of Court, and the process of developing each, and the developers of each, were informed by each of the others. The American Psychological Association has issued revised (2010) Guidelines for Child Custody Evaluations in Family Law Proceedings 10 (“APA Guidelines”) and the Association of Family And Conciliation Courts has promulgated both Model Standards for Practice For Child Custody Evaluation

11 (“AFCC Model Standards”) and, more critical to our inquiry, “Guidelines for Brief Focused Assessment” 12 (“AFCC Guidelines”). These “Guidelines” and “Model Standards” are just that, aspirational rather than mandatory 13 : they seek to establish, if not the “Rolls Royce” standard of practice, at least the “Honda/Toyota” standard of “very good” practice, rather than the “minimum legally acceptable” standard.

Can an evaluator conducting a limited scope evaluation really comply with CRC 5.220, and meet the standards of practice set forth in the APA and AFCC guidelines? To determine this, let’s break down the component parts of that which is required under California law: the notice, the data-gathering and analysis, and the presentation of results.


Continued on page 16 (Gould-Saltman)

Scope/Purpose and NoticeIn order to provide the notice required by the CRC, the evalu-ator must be clear as to the scope and purpose of the evalua-tion, and this is a significant potential pitfall at the outset of the path to completing a BFA.

In California, after Marriage of Seagondollar,14 judges ordering all evaluations are called upon to provide clear directions to the evaluator as to what questions the evaluator is being engaged to answer.15 A clear description of the scope of a limited assessment is particularly critical both so that the evaluator understands what he or she is tasked with, and so that the judicial officer ordering the evaluation, and the parties participating, are clear as to the limits of the evalua-tion. The AFCC Guidelines are clear as to the need for both the evaluator and the ordering judicial officer to distinguish between the purpose and scope of full “child custody evalua-tions” (“CCEs”) and BFA’s [emphasis added]:

Both CCEs and BFAs are used to assist in better informing judicial decision-making and both may be appropriate in different phases of the same case. However, BFAs typically address different types of issues and phases of a family dispute and gener-ally utilize a more descriptive approach versus the analytic mode used in conducting a CCE. There are instances in which a BFA is the most appropriate process, e.g., when issues in dispute are narrowly defined. There are also situations in which either a BFA or a CCE could be useful, but the BFA is ordered due to economic or institutional constraints. However, it is important that a BFA not be substituted as an inexpensive alternative where a comprehensive CCE is necessary to address the concerns of the court and the family.16

Given the limited nature of the data gathered in BFAs, clinicians must keep in mind the limitations inherent in the model and take care to: . . . b) stay within the scope of the referral question(s) . . . (c) make clear the limitations of the model to readers of the report (d) avoid applying the results to broad, qualitative psycho-social legal issues which are better suited to comprehensive child custody evalu-ations. If the court order for a BFA indicates that the evaluator is to conduct a “child custody evaluation,” the evaluator should seek clarification of the specific areas of concern to the court or request an order to conduct a comprehensive evaluation in keeping with current professional standards.17

These restrictions are problematic for judicial officers and litigants, who may take the view that some input from an expert is better than none and who may want the evalu-ator to “go beyond” the appropriate scope of a BFA. In the debate (noted above and below) as to the appropriate scope of expert evaluators’ opinions generally, a recurring theme is that both judicial officers and litigants want evaluators to recommend specific custodial and visitation arrangements,18 and indeed perceive that to be a significant part of the expert’s job.19

The purpose of the evaluation should already be part of a court order and the terms of that order can be attached to the written notice. If standardized procedures will be used, which seems most appropriate for an abbreviated evaluation, the process can be described in advance to the parties at the time the evaluation is ordered. If there will be no written report, an explanation regarding distribution might not be necessary, although concerns regarding the dissemination of a transcript of an oral report would seem to relate to the same concerns (i.e. getting into the hands of the children and/or being released to others for the purpose of interfering with the privacy rights of participants). The scope of the report should be the same as its purpose. The limitations of confidentiality should be described in writing as well, at a reading level appropriate to the average consumer of such evaluations. The cost is likely addressed at the time the evaluation is ordered.

Conducting the Evaluation. The evaluator is required to collect data and analyze it in a way that allows the evalua-tor “to observe and consider each party in comparable ways and to substantiate (from multiple sources when possible) interpretations and conclusions regarding each child’s devel-opmental needs; the quality of attachment to each parent and that parent’s social environment; and reactions to the separa-tion, divorce, or parental conflict.”

Implicit in this is the concept that the evaluator is not just balanced in the approach to gathering and analyzing data, but that some threshold of minimum adequate data is obtained upon which the evaluator can draw any such conclusions. Beyond that, assuming some threshold level of data is obtained, the barest quantity of data may be sufficient to draw the barest conclusions while more robust data would, presumably, offer the evaluator a greater level of confidence in drawing firmer and richer conclusions. Does the abbreviated process offer the opportunity to at least meet a minimum threshold and, preferably, provide sufficient data for the evaluator to make useful recommendations to the parties, counsel and the Court?

5.220(e)(2) offers some ways to do this:(A) Reviewing pertinent documents related to custody,

including local police records. In an abbreviated evalu-ation the evaluator should have access to the court file and may also have access to some criminal records, as well as DMV records. If the file is relatively brief this may be accomplished by scanning the file for relevant pleadings, reviewing those and moving on to the per-sonal interview portion of the evaluation. In a case in which the file is more than one volume, as is often the situation in cases referred for evaluation, a meaningful review of the court file within the 3 hours given in which to conduct the entire evaluation is not likely possible. Even in a two-day evaluation this portion alone may be a challenge.

(B) Observing parent-child interaction (unless contraindicated to protect the best interest of the child). This portion seems critical. A case in which parent-child interaction is contraindicated does not seem


Gould-SaltmanContinued from page 15

one which is appropriate for an abbreviated form of evaluation.

(C) Interviewing parents conjointly, individually, or both conjointly and individually (unless contraindicated in cases involving domestic violence), to assess:(i) Capacity for setting age-appropriate limits and for

understanding and responding to the child’s needs;(ii) History of involvement in caring for the child;(iii) Methods for working toward resolution of the child

custody conflict;(iv) History of child abuse, domestic violence, substance

abuse, and psychiatric illness; and(v) Psychological and social functioning.

It is certainly possible to interview parents to obtain their perspective of the history of involvement in child care, their description of how they have historically resolved conflict, and their reportage of a history of abuse or mental illness. In the scope of an abbreviated evaluation, unless any of these things is documented, if the parties differ in their perception of their historical participation with the children, or their perception of how they have resolved disputes, an abbrevi-ated evaluation leaves little time for an evaluator to gather data from other sources which could confirm or refute each parent’s version.

An interview of parents to determine their capacity for setting age-appropriate limits and understanding and responding to a child’s needs is a challenge in a short period of time.(D) Conducting age-appropriate interviews and observa-

tion with the children, both parents, stepparents, step- and half-siblings conjointly, separately, or both conjointly and separately, unless contraindicated to protect the best interest of the child.

In a full custody evaluation the evaluator usually has the opportunity to make these observations under more than one circumstance: visiting each parent’s home, interviewing the children after they’ve spent time with each parent. These multiple opportunities to view interactions provide the evaluator a way to measure the children’s interactions with each parent against each prior observation after at least one variable has changed. In the case of a BFA, the opportunity for that comparison is lost. Moreover, the evaluator seeing parties and their children interact on a single occasion does not allow the evaluator to determine whether that which is observed on that occasion is “typical” of interactions between these children and these parents or anomalous.(E) Collecting relevant corroborating information or

documents as permitted by law.In a BFA the evaluator usually has access to the court

records and public record information. If that information, or other information gained during the interview process, leads an evaluator to determine that additional data-gathering is necessary, the evaluator may be able to mention that in testi mony but is not likely to be able to obtain information

which the parties or their attorneys were not already prepared to bring to the hearing.(F) Consulting with other experts to develop informa-

tion that is beyond the evaluator’s scope of practice or area of expertise.

Should this situation arise in the context of a BFA, because of the time limitation, the opportunity to engage in such consultation is either non-existent or extremely limited.

Conclusions, Part 1, and a Preview of Part 2An abbreviated, focused assessment is not the same as a full evaluation. The Rules of Court define them differently, and relevant professional guidelines and standards re-emphasize the importance of the distinctions. The procedures used are different. The time taken is different (and incidentally, the cost is different). Use of an abbreviated form of evaluation is often dictated by constraints of money and time. The Court wants some information more or less immediately with which to make the best decision for the children involved. A full evaluation will not provide that information immediately. Often, because of the steep cost of a full evaluation, parties can not afford that kind of evaluation but can afford the abbreviated form.

The question then becomes, is an abbreviated form of evaluation “good enough” to provide meaningful recommen-dations to a Court, and, if so, under which circumstances. If the answer is, “No,” then no evaluator could ethically conduct such evaluation as doing so would be, essentially, attempting to perpetrate a fraud on the tribunal by providing unreliable information to the Court and intending that the Court rely on the unreliable information without telling the Court that the information is unreliable. If the answer is, “Yes,” the evalu-ator must engage in the difficult task of circumscribing his or her recommendations to the limits of the data and refrain from the temptation to be “helpful” to the Court by offering recommendations which exceed the scope of that data.

Part 2 of this article, still in the works, will address the questions which judges should and shouldn’t be asking evalua-tors performing BFA’s to answer, and, from the other direction, which questions those evaluators should be willing to answer, and which they should insist they should not or cannot.

Endnotes1 While it is relatively easy for an economically rational litigant, or for those administering the justice system, to determine the allocation of resources for litigation of economic issues (i.e., while a litigant might spend $1,000 to resolve a $100,000 dispute, he wouldn’t rationally spend it to resolve a $1,000 dispute) , no such easy “sorting” occurs in custody cases, the issues of which know no particular class or socioeconomic status.2 Marriage of McGinnis (1992) 7 Cal.App.4th 4733 “In ‘move away’ cases where a shared parenting arrangement is working, an order changing custody should be made only after adequate notice, a meaningful mediation, and the parents have been given the opportunity for an outside evaluation. . . . Our decision reversing the custody order returns the case to the trial court which, in deciding the appropriate custody plan, must hold a new hearing and determine what arrangement is in the best


BreyerContinued from page 11

which is precisely what the courts in Diosdado and Mehrens accomplished when they rendered their respective opinions. The widespread acknowledgment that “. . . transactions between . . . a husband and wife are subject to the general rules govern-ing fiduciary relationships” 20 underscores that Family Code § 2335 does not provide a shield against the consequences of otherwise actionable conduct, nor give a “get out of jail free card” to those who would intentionally engage in such conduct. Clearly, it is time for the appellate courts to take a long, hard, look at Diosdado and Mehrens, both of which run counter to the spirit of no fault divorce and are purely and simply wrong.

Meanwhile, at least one trial judge has seen it my way. Jack and Jill’s agreement was found to be enforceable and title to the real estate was confirmed to Jill!

Endnotes1 11 Witkin, Summary 10th (2005) H & W, § 58, p.1022 Adultery; extreme cruelty; conviction of a felony; willful intemperance; and willful neglect. A seventh ground, incurable insanity, has been retained in a modified form in the new law. Cf. Family Code 23103 Cf. Legislative Committee Report4 Diosdado v. Diosdado (2002) 97 CA4th 470; 118 CR2d 4945 In re Marriage of Mehren & Dargan (2004) 118 CA4th 1167; 13 CR.3d 5226 Diosdado, supra, at 471-4727 Diosdado, supra, at 4728 Mehren & Dargan, supra, at 1169-11709 Askew v. Askew (1994) 22 CA4th 942; 28 CR2d 28410 Cf. Diosdado, supra, at 47311 Cf. In re Marriage of Walton (1972) 28 CA3rd 108 where the court distinguished between the rights and obligations arising out of a civil contract and those rights and obligations exclusive to the marital relationship. Both Diosdado and Mehrens failed to make this distinction, Diosdado placing undue emphasis on In re Marriage of Bonds (2000) 24 CA4th 1 and Mehrens mis interpreting § 578 of the Restatement of Contracts.12 Family Code § 233513 Civil Code § 450914 Cf. Family Code § 233515 Cf. In re Marriage of Haines (1995) 33 CA4th 277; 39 CR2d 673 and In re Marriage of Delaney (2003) 111 CA4th 991; 4 CR3d 37816 Initiated by everyone’s favorite Yankees fan, Joe Winn17 “Remedies for the breach of the fiduciary duty by one spouse when the breach falls within the ambit of Section 3294 of the Civil Code shall include, but not be limited to, an award to the other spouse of 100 percent, or an amount equal to 100 percent, of any asset undisclosed or transferred in breach of the fiduciary duty. (Ad Stats 1992, C162)”18 Thanks to Leslie Shear for her always insightful contribution to the dialogue.19 Cf. Legislative Committee Report20 Family Code § 721 n

interests of the children. It should do so only after allowing the father the opportunity to obtain an outside evaluation.” McGinnis (1992) 7 Cal.App.4th , at 480, 481.4 Marriage of Burgess (1996) 13 Cal.4th 25.5 Marriage of Brown & Yana (2006) 37 Cal.4th 9476 Stahl, P. (2005) “Benefits and Risks of Child Custody Evalu-ators Making Recommendations to the Court: A Response to Tippins and Wittman” Family Court Review Vol. 43(2) 263.7 Newell, M, and Grashina, M. (2004). The Project Manage-ment Question and Answer Book. p.88 Los Angeles Superior Court Family Court Services has re cently implemented a two-day version of this process; known as a “PPA II”; there is no officially endorsed explanation of the dif fer ence in protocol, beyond the extended duration and complexity.9 Both authors having practiced mostly in Los Angeles County, a “confidential custody mediation county,” find “recommending mediation” to be incongruous, but will save the discussion of the relative virtues of the two models for another time.10 American Psychological Association (2010) “Guidelines for Child Custody Evaluations in Family Law Proceedings,” American Psychologist 65: 863-867.11 AFCC (2006) Model Standards of Practice for Child Custody Evaluation.12 AFCC (2009) Guidelines for Brief Focused Assessment.13 “The term guidelines refers to statements that suggest or recommend specific professional behavior, endeavors, or conduct for psychologists. Guidelines differ from standards in that stan-dards are mandatory and may be accompanied by an enforce-ment mechanism. Guidelines are aspirational in intent. They are intended to facilitate the continued systematic development of the profession and to help facilitate a high level of practice by psychologists.” APA (2010) Guidelines “Introduction”, p. 863.14 Marriage of Seagondollar (2006) 139 Cal.App.4th 111615 “Defining the purpose and scope of Dr. Adam’s evaluation was more than an academic exercise. . . . We need not decide the level of detail with which an order appointing an Evidence Code section 730 evaluator in a family law matter should define the purpose and scope of the evaluation. In this case, the order was woefully inadequate because it failed to define the purpose and scope of the evaluation at all.” Seagondollar, supra., 139 Cal.App.4th at 1132, 1133.16 AFCC Guidelines, Preface.17 AFCC Guidelines, “VII. Limitations of Brief Focused Assessments”.18 “[W]e believe that most judges want a specific recommenda-tion as to custodial placement and will avoid using an evaluator who refuses to offer such an opinion.” Gould, J. and Martindale, D., (2005) “A Second Call For Clinical Humility and Judicial Vigilance: Comments on Tippins and Wittman (2005)” Family Court Review Vol. 43 Number 2 p. 25619 “[O]ne of the components most valued by legal consumers is a specific recommendation for custody and . . . . . . the over-whelming majority of judges and attorneys believe that psycholo-gists should address the ultimate issue before the court.” Tippins, T., and Wittman, P., (2005) “Empirical and Ethical Problems With Custody Recommendations: A Call for Clinical Humility and Judicial Vigilance” Family Court Review Vol. 43 No. 2, page 193; citing Bow, J. N., and Quinnell, F. A. (2004). “Critique of Child Custody Evaluations by the Legal Profession” Family Court Review, Vol. 42, 115-127. n


AuthorContinued from page 18

In re the Marriage of Georgiou and Leslie(2013) 218 Cal.App.4th 561, __ Cal.Rptr.3d __ .

Holding: The trial court properly granted H’s demurrer to W’s post-separation motion brought under Family Code § 1101 alleging that H breached his fiduciary duty to her during the dissolution proceeding by failing to disclose the true value of a community asset divided in the parties’ MSA. It agreed with the trial court that section 1101 does not authorize post-judgment breach of duty motions.

Summary of the facts: Byron and Maria were married for eight years when Byron filed his dissolution petition. Among the community assets was a 10% referral fee to which Byron became entitled when he secured a class action plaintiff and designated a firm of which he was of counsel as the lead coun-sel. Maria was aware of Byron’s referral fee agreement with the firm and that the firm had already recovered the largest amount in a class action in history before she signed the MSA. During the proceedings, her attorney had deposed a partner at the firm and questioned him regarding the class action.

He testified that the firm and Georgiou disputed the fee, which would have to be approved by the federal court in any event, but that it would be at least 3% of the firm’s recovery. In her settlement conference brief, Maria said that the ultimate fee could be between $9 and $33 million, but that the firm intended to seek far more than that and that Byron would argue that he was entitled to 10% of the firm’s fee.

The parties divided the prospective fee in the MSA. Maria agreed to accept 10% of Byron’s portion of the fee in exchange for other assets, including Byron’s separate property home and eight townhomes. By agreement, Byron would receive the other 90% of the ultimate fee, various business interests, and substantial credit card and other debt.

Judgment was entered on December 12, 2007, incor-porat ing the MSA. A month later, the firm submitted its fee application and in September of 2008, the court awarded it $688 million in fees. It ultimately paid Byron 9% of that, and he paid Maria $4 million for her 10% share. When he paid her, Maria realized that the fee he received had topped the $33 million she expected the fee to be. A year later, she learned that she was entitled to an additional $1.56 million.

Maria then changed attorneys and filed a motion under Family Code § 2122(d) to set aside the judgment based on mental incapacity, which she later dismissed after retaining yet another attorney. A year later, she filed a motion under Family Code § 1101 alleging that Byron breached his fiduciary duty to her. She claimed that he did so by failing to provide her with a copy of his fee agreement with the firm “and inventing or exaggerating a dispute with the firm over the amount of his referral fee.” She stated that if she had known the agreement’s terms, she could have calculated the amount that Byron stood to receive, and sought either half or 100% of the referral fee under either section 1101(g) or (h).

Byron brought a summary adjudication motion, arguing that Maria’s motion was untimely under section 1101(d)(1). In response, Maria argued that her action did not accrue until she learned the actual amount of the fee and realized that Byron had understated it. The trial court granted the motion by holding sua sponte that the remedies provided by section 1101 are not available in a post-judgment motion. It interpreted the section as authorizing an action only either during an intact marriage, in conjunction with a dissolution action or after the death of a spouse.

The trial court also found that section 2122(e) [set-aside

Journal EditionDawn Gray, cfls

Nevada County • [email protected]

Dawn Gray is a Past President of ACFLS. She is a solo practitioner

whose practice is devoted to contract research and writing

on family law issues.


Continued on page 24 (Gray)

based on mistake] was Maria’s sole recourse, but that the sec-tion’s limitations period had long expired. Alternatively, it held that even if section 1101 applied, her action was barred by its three-year limitations period since she knew when she signed the MSA that she did not have a copy of Byron’s fee agreement.

Result on appeal: Maria appealed, but the Fourth District affirmed, applying a de novo standard for interpretation of a statute. First, the court summarized spouses’ fiduciary duties to each other. Next, it discussed post-judgment remedies for breach of duty. It said that CCP § 473 relief is available within the first six months after entry of judgment. It also observed that “(h)istorically, ‘[c]ourts have also been held to have inherent power to set aside a judgment, even after the six-month period of Code of Civil Procedure section 473 has passed, if the parties have been deprived of the opportunity to litigate their claim.’” Then, it noted that the legislature added Family Code § 2120 et seq. in 1993, and that these sections set out the exclusive grounds and time limits for set-aside relief. It concluded that Maria had waited too long to bring a claim under these sections.

Maria, however, argued that hers was an independent action brought under section 1101(d)(2) and subject to its three-year limitations period. Noting that section 1101 “does not expressly preclude postjudgment actions,” the panel set about to reconcile these sections. It said that

Sections 2122 and 1101 pertain to the same subject matter, as they both provide remedies for breach of the fiduciary duty of disclosure. In Leslie’s view, the remedies are interchangeable, and if a party misses the one-year deadline for an action under subdivision (f) of section 2122, he or she may bring an action under section 1101, subdivision (d)( 1), within the three-year limitations period.

Section 2120 et seq. takes precedence, however, “when either party is seeking to ‘undo’ a property division judgment that adjudicated particular assets and/or liabilities. By contrast, those statutes have no effect on proceedings to determine community inter-ests in assets and liabilities that were unadjudicated or omitted from the judgment.” (Hogoboom, supra, ¶16: 160, p. 16-47; In re Marriage of Melton (1994) 28 Cal.App.4th 931, 939 [“property left unadjudicated by a divorce decree is subject to future litigation, the parties being tenants in common in the meantime”]; see also § 2556 [“the court has continuing juris-diction to award community estate assets or com-munity estate liabilities to the parties that have not been previously adjudicated by a judgment in the proceeding”].) “The mere mention of an asset in the judgment is not controlling. [Citation.] ‘[T]he crucial question is whether the benefits were actually litigated and divided in the previous proceeding.’” (In re Marriage of Thorne & Raccina (2012) 203 Cal.App.4th 492, 501.)

We are not required to determine the propriety of the court’s finding that section 1101 never autho-rizes a postjudgment action for breach of fiduciary duty. Rather, we conclude section 1101 does not

authorize a post judgment action in these circum-stances, because the referral fee cannot be disposed of without upsetting the judgment, or at least a portion of it. The judgment divided Georgiou’s referral fee unequally, and divided the remainder of community assets and debts based on the dispar-ity. Leslie cannot take the benefits of the judgment and also obtain 50 percent or 100 percent of the referral fee under section 1101 , subdivision (g) or (h). To interpret section 1101 as Leslie urges, we would have to ignore section 2120 et seq. and the strong public policy of assuring finality in judgments within a reasonable time (§ 2120, subd. (b)).

The panel held that the trial court was correct in determin-ing that Maria’s exclusive remedy was a set-aside action under Family Code § 2122. It concluded that “(b)ecause she did not file her action within the one-year limitations period of subdi-vision (f) of section 2122, the family court lacked jurisdiction over the matter and summary adjudication was proper.”

My comments: What does this case actually hold? It affirms a trial court’s interpretation that under the circum-stances of the case, where the entirety of the asset had, in fact, been adjudicated in the judgment, Maria’s exclusive remedy was set-aside because the asset “cannot be disposed of without upsetting the judgment, or at least a portion of it,” which can only be done under the set-aside statutes. So the holding may be easily distinguishable where the portion of the asset was actually unadjudicated. Under those circumstances, a motion to divide an omitted asset would lie, but it could be accom-panied by a motion for sanctions for breach of duty where the reason for the omission amounted to a breach. Also, in that situation the omitted asset or portion of the asset would not have been “distributed;” therefore, the fiduciary duties of Family Code § 1100(e) and § 2102 would still apply. Here, the court essentially held that the asset had been fully distributed.

The facts also indicated that there was no breach of duty, because H had disclosed the existence and potential value of the asset, and the fact that its actual value had not yet been determined. I am not certain that Maria would have won a set-aside motion on the basis of nondisclosure in the first place.

The Georgiou panel specifically said that it was “not required to determine the propriety of the court’s finding that section 1101 never authorizes a postjudgment action for breach of fiduciary duty.” So, its holding should not deter such motions where the facts are distinguishable. Essentially, all that this case held is that Maria’s motion required set-aside and was brought too late under the set-aside statutes.

This court’s holding that an award of sanctions would have required set aside because the asset “cannot be disposed of without upsetting the judgment, or at least a portion of it” brings up something I have long considered an important issue. That is, whether 1101(g) and (h) simply measure the amount of sanctions to be awarded by 50% or 100% of the value of an undisclosed asset, or whether they require an award of the undisclosed asset itself as the penalty for a breach. Every court has interpreted it to be the latter, but the language (and I would argue, the intent) of the statutes says otherwise.


Social networking is the use of Internet sites that offer members, and nonmembers on a limited basis, the opportunity to share with “friends”, (usually other

members or guests of the site), unbelievable amounts of infor-mation about themselves, their families, and their friends, in the form of text, photos, and videos by posting the informa-tion to a profile page. “Friends” visit sites of other member “friends” to chat, comment and stay connected without the need to bother with all that annoying face to face contact. Recent statistics indicate that the United States is only the tenth “most engaged” country for social networking.1 More than half of the people in America use social networking sites (SNS). A 2011 Pew Internet report on Social Networking

Sites and Our Lives, found that , “. . . 79% of American adults said they used the internet and 59% of internet users, say they use at least one SNS. This is close to double the 26% of adults (34% of internet users) who used a SNS in 2008. The average age of adult SNS users has shifted from 33 years old in 2008, to 38 in 2010. Over half of all adult SNS users are now over the age of 35. Slightly more than half (56%) of SNS users are female. Some of the top social networking sites currently include Facebook (the market share leader in social networking by far), MySpace, YouTube, Twitter, Google Plus +, Instagram, iTunes, and LinkedIn (a “professional” social networking site). Facebook dominates SNS with 92% of users, 29% use MySpace, 18% use LinkedIn and 13% use Twitter.” 2 Many users post information on a daily, some on an hourly – hopefully not your employees – basis.

Each social networking site offers different features, such as instant messaging, photo sharing, video sharing, chat, and games. Many users access SNS via their mobile phones. Social networking sites store seemingly limitless amounts of electronically stored information (known as ESI) and can be both gold mines, and mine fields for attorneys in litigation. The information voluntarily made available on these sites by members is astounding in sheer volume and amount and often shocking in nature. It has not taken attorneys long to seize upon the admissions and evidence made available by parties on their social networking sites. Uses of social networking site information in litigation run the gamut from Instagram photos of “disabled” individuals riding jet skis posted prior to settlement, to verifying the veracity of potential jurors’ statements by searching jurors’ public Facebook details.3

If issues in a case are unresolvable and are headed for trial, SNS can be invaluable aids in trial preparation. It would be foolish to ignore that, (according to the Pew Internet report above) half of litigants, jurors, and witnesses in any given case will have a SNS profile. Amazingly, many attorneys maintain public social networking profiles, and even more amazingly, some judges do as well.

Evidence gathered from SNS can be a significant factor in encouraging settlement and in making your case in the trial phase. There are challenges with electronic evidence, however. Social media can be unfamiliar to some judges

Rhoda A. Chandler is a Certified Family Law Specialist as designated by the California State Bar Board of Legal Specialization, a Strauss Institute trained

Mediator, and a Super Lawyer Rising Star. Ms. Chandler proudly acknowledges she is a

“computer geek.” She formerly worked in the legal department at Gateway Computers in South Dakota and is committed to using the latest technology to remain relevant and current on developments and changes in the law and to applying cutting edge technological advantages to her firm’s

approach to the practice of law to improve efficiency.

The Ups and Downs of Social Media Evidence

in LitigationRhoda A. Chandler, cfls

Solano County

[email protected]


Continued on page 22 (Chandler)

and attorneys. Testimony about how user profiles are created, how social networking sites work, metadata, security policies, privacy settings, and general operation will usually be prudent, if not absolutely necessary. These are new waters we are testing, but some predictable policies are emerging that can help navigate these waters.

AuthenticationYou think you have found a priceless nugget of damaging information on a social networking site, perhaps a profile page, a damaging post, a digital photograph, a chat transcript, or a message. It absolutely makes your case. But, is it admis-sible evidence? The cases on the issue of authentication so far tell us that we must be mindful of the data itself, mindful of the methods of data collection and mindful of the chain of custody rules to ensure we can clear hurdles in the way of the admission of electronically stored information as evidence.

Perhaps one of the most difficult hurdles to admissibility of digital evidence is “authentication” (that is, proving an item of evidence to be genuine, and not a forgery or a fake). Just because you found it on the Internet, doesn’t mean it’s comin’ in!

To be admitted into evidence digital material must be properly authenticated. Rules of evidence require laying a foundation of “. . . evidence sufficient to support a finding that the matter in question is what it purports to be.” This foundation can be laid in a number of ways when it comes to SNS information, through witness testimony, either lay or expert depending on the nature of the testimony, through circumstantial evidence, through electronic forensic evidence, and even by subpoenaing a third party website or Internet Service Provider (ISP).

Forensic InvestigationTechnology itself can assist with electronic evidence authenti-cation. A computer or mobile phone contains “evidence” and “writings” such as an internet history, data on a hard drive or memory card, search engine search histories, call logs in and out, metadata, hash values, collection logs, location indica-tors, user IDs, IP addresses and date stamps, to name a few, which can all be useful in laying foundation, albeit difficult to preserve.4 However, this type of evidence will often require expert testimony and very careful explanation for the trier of fact because collection of such evidence requires unique software and techniques not familiar to most of us.

Oral TestimonyParty and witness testimony can be invaluable in explaining the general operation of a social networking site and such testimony will help the Court to decide whether sufficient foundation has been laid to establish authenticity. Testimony may be from a party, a third party witness, an expert, or a third party social networking website. Obviously, a witness who created evidence can testify to authenticate it. Equally obviously admissible are admissions by a party opponent.5 A third party social networking site or ISP can provide infor-mation related to user accounts, user profiles, and digital links between digital information and the original creators

of the information. Witnesses will need to provide details about how evidence was created, stored, secured, maintained and how it can be changed and preserved. In the civil context, a party or witness can simply be asked if he or she created the profile and the post at issue.

Testimony will also have to address concerns over “hack-ing” of SNS. Just because a SNS profile appears to be the site of a particular individual, is it really? Fake profiles and phone numbers can be, and have been created (“spoofing”), infor-mation and chats can appear to originate with a particular user but in fact can be someone else. “Frienemies” have been known to create fake profiles to gain access to post under another name to “cyber-bully” an individual, to get back at a person they are angry with (as in a scorned mistress or ex-spouse), or to gain viewing access as a “friend” when they would have been denied access had the member known the true identify of the “friend”. Unauthorized third parties can access the SNS of others and photographs can be altered and photoshopped.6 These concerns must be addressed and are important to both the party proffering the evidence and the party challenging the admissibility of the evidence.

Authentication through Circumstantial EvidenceBoth the Federal Rules of Evidence (Rule 901(b)(4) and the California Evidence Code (§ 1410-1421) provide if a propo-nent can marshal enough circumstantial evidence to create a permissive inference satisfying Evidence Code §§ 403 and 1400(a), the proponent has met the authentication require-ment.7 This is true of social media evidence as well and has been both effective and ineffective in a number of cases.

“Social networking sites often include a wealth of very personal information, on profile pages, in posts, photographs, and video, as well as several types of metadata, some of which are not publicly visible (another question for the court, which I will not go into here, has been if evidence is found on a “private” page, does this affect its admissibility). Different types of social media evidence will present different evidentiary hurdles. For example, profile pages and posts may require sufficiently distinctive data, such as references about which only the author would have known.” 8 The New York State Bar Association has clearly held that properly authenti-cated, publicly-available Facebook and MySpace postings are fair game and this is a generally held view at this point.9

However, authentication though circumstantial evidence is a somewhat gray area as there are no hard and fast rules regarding the quantity of such evidence necessary to authen-ticate social media evidence. “Whenever a litigant seeks to introduce into evidence transcripts of chat room discussions or instant messages, the challenges usually include proving the identity of the persons in the conversation (as well as the accuracy of the transcription).” At the 2007 ABA Annual Meeting, the Litigation Section presented a program entitled, “The New Frontier: Admissibility of Electronic Evidence.” In addition to discussing the evidentiary issues involved with other forms of “electronically stored information”, the ABA correctly cautioned that screen names often reveal little about a sender’s true identity.”


ChandlerContinued from page 21

The New York Appellate Division, for example, recently held that the trial court properly admitted an Internet text message that had been authenticated strictly on the basis of circumstantial evidence.10 The sender, a defendant in a murder trial, allegedly transmitted a message to the victim’s cousin, stating that he did not want the victim’s baby. The prosecution did not ask the Internet service provider to authenticate the message, and the witness who testified to its origination did not print or save the message.

Even so, the witness testified that she knew the defen-dant’s screen name, and she had sent an instant message to that name. The Appellate Division noted that the defendant had sent the witness a reply that would have made no sense unless it had come from the defendant. Most importantly, there was no suggestion that anyone had impersonated him. Thus, the court found that these factors were sufficient to warrant admission of the message.

The California Court of Appeal, by contrast, has held that a trial court was justified in excluding a text message when prosecutors offered insufficient evidence to authenticate it, and the record showed that more than one person could have transmitted the message.11 The court found there was an absence of direct, circumstantial, or other reliable evidence linking the alleged sender to the screen name for the message. The sender invoked his Fifth Amendment privilege, and no witness testified that the sender had ever used the screen name at issue or offered other evidence that he was the source of the message.

In Campbell v. Texas,12 a judge in a domestic violence case allowed three Facebook messages from the defendant’s account that contained “unique speech patterns” and demonstrated direct knowledge of the incident at issue in the case. In a recent employment discrimination case, the court excluded photographs “found and downloaded from Facebook” without more to authenticate them.13

Attorneys can avoid such results by providing testimony about how photographs were collected and highlighting distinctive characteristics of the social media pages to provide context. Circumstantial evidence visible on a social media site, if it provides enough content and context, may be sufficient for authentication. This could include, for example, a com-bination of photographs, video, comments, email addresses, responses to chats and posting dates. Related data from other sources also may provide context to aid authentication, including email notifications of posting activity, and computer and account usage logs. Metadata (data about data – I like to analogize this to a digital version of the old card catalogs in a library), location of origin, user ID numbers, IP addresses, and when messages were created or revised can provide context as well. Moreover, presenting this authenticating evidence through video or interactive demonstration software can help accurately represent dynamic information and provide a solid foundation for authentication.” 14

In Griffin v. Maryland,15 the Maryland Court of Appeals ordered a new trial of a criminal conviction. The court

based the new trial order solely on the prosecutor’s failure to properly authenticate certain social media pages used during trial. Authenticating social networking site evidence is particularly challenging and must be taken seriously.

During defendant Antoine Levar Griffin’s trial, the state sought to introduce his girlfriend’s MySpace profile to demonstrate that she had allegedly threatened a key witness prior to trial. The printed pages contained a MySpace profile in the name of Sistasouljah (a pseudonym), listed the girlfriend’s age, hometown, and date of birth, and included a photograph of an embracing couple, which appeared to be that of Griffin and his girlfriend. The printed pages also contained the following posting, which substantiated the witness’s intimidation claim:

“JUST REMEMBER SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!”

Griffin was convicted of second-degree murder, first-degree assault, and illegal use of a handgun, and was sentenced to 50 years in prison.

On appeal, Griffin objected to the admission of certain MySpace pages because “the State had not sufficiently established a connection” between Griffin’s girlfriend and the SNS pages. The intermediate appellate court denied the appeal and concluded that the documents contained sufficient indicia of reliability because the testimony of the lead investigator and the content and context of the pictures and postings properly authenticated the MySpace pages as belonging to her. The Maryland Court of Appeals reversed, finding the picture of the girlfriend, coupled with her birth date and location, were not sufficient distinctive characteristics on a MySpace profile to authenticate its printout. First, as the court observed, although MySpace typically requires a unique username and password to establish a profile and access, “[t]he identity of who generated the profile may be confounding, because ‘a person observing the online profile of a user with whom the observer is unacquainted has no idea whether the profile is legitimate.’ . . . The concern arises because anyone can create a fictitious account and masquerade under another person’s name or can gain access to another’s account by obtaining the user’s username and password.” 16

Sanctionable SNS Sanitizing and Other Ethical IssuesBe aware that once material is posted on a SNS website, removing all evidence of it, permanently and completely, may be difficult. Attorneys should be advising their clients to privatize any publicly available social media. Attorneys also need to be aware that in the legal arena, intentional removal of relevant evidence from (as contrasted with simply limiting of access to) a SNS can be suicide. Failing to inform clients to be mindful that their social networking information may be admissible evidence, is quite different from advising a litigant or potential litigant to dispose of damaging evidence already posted on a social media site. In a Virginia case 17 a plaintiff and his attorney were both sanctioned for such behavior, in excess of $500,000 and ordered to pay the defense’s


attorney’s fees and costs. (Needless to say, the offending attorney was fired from the firm.)

Attorneys should also be aware that there is already an extant ethics opinion that has held that it is unethical for an attorney to “friend” an adverse party or potential witness in a case, without full and honest disclosure of identity.18 A court would likely find it similarly unacceptable for a party to deceptively “friend” an opposing party under a pseudonym to obtain damaging information.

Preservation of Electronically Stored InformationGiven the inherently dynamic nature of electronically stored information, social media posts especially, it is important to take any available steps to preserve evidence, and protect against the risk of subsequent deletion, or restriction, as early as possible. It is easy to delete information, so collect “screen capture” evidence when you can, and worry about authenticating it later. (Adobe “Webcapture” is an essential litigation tool in the time of social media.) You may not be able to use it, if you can’t authenticate it, but you definitely won’t be able to use it if you don’t have it at all. (Note: “deleting” a Facebook profile does not “erase” the profile. When a Facebook profile is “deleted” the profile is merely “deactivated”. A “deactivated” account disappears from Face-book’s publically visible pages. However, Facebook retains all profile information including friends’ lists, photos, and so on. To “reactivate” a “deleted” account a user need only sign on to Facebook at the main sign-on page. This is why there have been cases involving discovery of Facebook login and password information.) If you believe there is evidence you want preserved, send a preservation letter or formal reten-tion demand to opposing counsel to avoid spoilation of the evidence and if evidence is intentionally removed to ensure sanctions. If evidence is destroyed thereafter, the courts are coming down just as hard with sanctions on the destruction of electronic evidence as they do regarding the destruction of physical evidence.

ConclusionThe nature and amount of ubiquitous social networking site evidence is enticing in its ease of access. But as we lawyers learned back in 2003, when MySpace was born, information found on the Internet in social networking sites should be viewed with a healthy dose of skepticism. As we are learning now, just because it was easy to find, does not mean it is true or that it will be easy to admit into evidence at trial.

Social networking forums are here to stay and issues involving electronic evidence will almost certainly arise in your cases if they haven’t already. According to ABA research between January 1, 2010, and November 1, 2011, there were 674 published cases involving social media evidence in some way.19 There have been 300 Federal cases through the end of 2009, that awarded sanctions regarding e-discovery violations.20 Social medial evidence will not be an issue in every case you litigate, but it will be in many, particularly in the Family Law practice area where it seems people who claim they can’t stand each other still seem to love to engage electronically and parties involved in litigation

do not yet seem to appreciate the significance of posting evidence inconsistent with claims and assertions made in court. The issues of electronic evidence and e-discovery are some of the fastest growing areas of law and they are constantly changing. (Warning: by tomorrow this article will be obsolete!)

Endnotes

1 Statistics Brain, Social Networking Statistics, 11-12-2012

2 Hampton, K., Goulet, L.S. “Social Networking Sites and Our Lives” Pew Internet June 16, 2011.

3 Campoy, Ana, Jones, A. “Searching for Details Online: Lawyers Facebook The Jury.” Wall Street Journal February 22, 2011.

4 John Patzkis, Overcoming Potential Legal Challenges to the Authentication of Social Media Evidence, X1 Discovery (2011), http://x1discovery.com/download/x1Discovery _ whitepaper_social_Media_2011.pdf

5 Either not hearsay, (F.R. Evid. Rule 801(d) (2)) , or not “made inadmissible by the hearsay rule” (Cal. Evidence Code § 1220).

6 Adobe Systems’ Photoshop® is well on its way to becoming both genericized, and “verbified” as a term for digital image manipulation. See, e.g., “Photoshop Definition,” Dictionary.com, http://dictionary.reference.com/

7 Imwinkelried, E., Leach, T. (2012) California Evidentiary Foundations

8 Boehning, H. C., Toal, D.J. (2012) “Authenticating Social Media Evidence,” New York Law Journal October 2, 2012

9 NYSBA Comm. On Prof’l Ethics, Op. 843 (Sept. 10, 2010)

10 People v. Pierre (2007) NY Slip Op 05433

11 People v. Von Gunten (2002 Cal.App.3d Dist.) 2002 WL 501612. [Unpublished.]

12 Campbell v. Texas, 382 S.W.3d 545 (2012)

13 Id.

14 Boehning, H. C. , Toal, D.J. (2012) supra.

15 Griffin v. Maryland, 19 A.3d 415 (MD. 2011)

16 McHale, R. (2012) Social Media in Litigation and E-Discovery: Risks and Rewards

17 Lester v. Allied Concrete Co., Nos. CL 08-150, CL 09-223, 2011 WL 89856003 (Va. Cir. Ct. Sept. 1, 2011); Lester v. Allied Concrete Co., Nos. CL08-150, CL09-223, 2011 WL 9688369 (Vas. Cir. Ct. Oct. 21, 2011).

18 Phila. Bar Ass’n Prof’l Guidance Comm., Op. 2009-2, Phila. Bar Ass’n

19 Hansen, S. (2012) Effective Use of Social Media As a Litigation Tool for the Defense” Heyl, Royster, Voelker & Allen, 27th Annual Claims Handling Seminar

20 Id, at E-12 n


GrayContinued from page 19

Sanctions are supposed to be imposed over and above a restitution remedy. Family Code § 1101(g) provides that “(r)emedies for breach of the fiduciary duty by one spouse, including those set out in Sections 721 and 1100, shall include, but not be limited to, an award to the other spouse of 50 percent, or an amount equal to 50 percent, of any asset undisclosed or transferred in breach of the fiduciary duty plus attorney’s fees and court costs.” If this is a “remedy” for a breach of duty, and the omitted asset is a community asset that the party already owns an interest in, then the SANCTION should be in an amount equal to the asset’s value separate and apart from an award of the interest in the asset. In other words, the sanction is only measured by the value of the asset. Simply awarding the other spouse the half of the asset that he or she already owns is no “sanction.” By interpreting the section this way, the only “sanction” is the attorney fee award, possibly an amount much less than the value the breaching spouse sought to keep for him or herself.

Similarly, the punitive sanction under section 1101(h) of 100% of the asset should be the measure of the sanction in addition to an award to the other spouse of the half of the asset he or she already owned. Unfortunately, courts have not interpreted these sections in that manner. Instead, they ONLY award the non-breaching spouse the other spouse’s half of the asset. While that is a sanction, it certainly does not equate to the type of punitive damages authorized by Civil Code § 3294. Those damages are in addition to compensatory damages, and so should they be for breach of duty.

Also, note that as of January 1, 2013, Rule of Court 5.74 (b) provides that “(d)emurrers or summary judgment motions must not be used in family law actions.”

Barry Vincent Brewer, Jr., v. Kymar Carter2013 WL 4417439, decided by the Second Districton August 16, 2013.

Holding: The trial improperly held that California was an inconvenient forum for resolving the parties’ custody dispute without holding an evidentiary hearing.

Summary of the facts: Barry and Kymar have a son, born in April of 2010. They lived together in Los Angeles until Kymar took the infant with her to visit family in Chicago. When she did not return, Barry filed a petition to establish a parental relationship, seeking joint custody and visitation. After Kymar’s responsive documents were rejected “due to a filing fee error,” she filed a paternity action in Illinois, where she had then been living for six months. Her Illinois attorney told her that because of this pending action, she need not respond in the California action.

Barry took Kymar’s default and scheduled a prove-up hearing for June 29, 2012. On that date, Kymar filed a motion to set aside her default; noting the pendency of the Illinois action, the trial court continued the hearing date. Kymar filed a response seeking sole physical custody and visitation rights to Barry. She did not appear at the continued hearing,

citing her inability to pay the cost of the telephone call. At the hearing, the court vacated the default; after telephone consul-tation with the Illinois court, it found that California was not the child’s home state when Barry filed his petition because he had not lived in California for six continuous months immediately preceding the filing. It also found that Illinois was the child’s home state when Kymar filed her action there, and therefore the Illinois court should determine custody issues. It continued the hearing to permit Barry to file a response to the petition; after further consultation with the Illinois court, the Illinois court agreed that it should have jurisdiction.

Barry filed a motion for reconsideration, which the court denied as not based on any new law or facts. However, it took the opportunity to give a different reason for its holding. It acknowledged that California had acquired jurisdiction to determine custody issues before Illinois; however, it held that it declined to exercise it under Family Code § 3427 [inconve-nient forum for child custody determination] and stayed the action in favor of Illinois. It concluded that because of the likely availability of information regarding the child, the Illinois court was in a better position to determine his best interests.

Result on appeal: Barry appealed and the Second District reversed, holding that the trial court abused its discretion. It also noted that “the most recent documents sent to Carter by this appellate court have been returned with the notation that she moved without providing a forwarding address.”

The panel held that when Barry filed his petition, California was the child’s home state under Family Code § 3042(a), and that the conclusion would be the same under Illinois law, which has adopted the same UCCJEA provisions regarding subject matter jurisdiction. It then held that when Kymar filed her action in Illinois, that court was required by those provi-sions to decline jurisdiction. The panel agreed with Barry that the court abused its discretion by failing to provide him with an opportunity to present evidence on the issue “as required under section 3427, and in the absence of evidence, the court could not consider and apply the statutory factors set forth in section 3427.” The court stated that

(b)efore determining that California is an inconve-nient forum, the California court must first consider whether it is appropriate for another state to exercise jurisdiction. (§ 3427, subd. (b).) To make this deter-mination, “the court shall allow the parties to submit information and shall consider all relevant factors, including: [¶] (1) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child. [¶] (2) The length of time the child has resided outside this state. [¶] (3) The distance between the court in this state and the court in the state that would assume jurisdiction. [¶] (4) The degree of financial hardship to the parties in litigating in one forum over the other. [¶] (5) Any agreement of the parties as to which state should assume jurisdic-tion. [¶] (6) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child. [¶] (7) The ability of the court

Continued on page 33 (Gray)


George Seide from Los Angeles, who served as Regional Director.

Lulu Wong from Napa Valley, who served both as Treasurer and Coordi-nating Director.

We will miss them all, but as you can see from the slate, which is printed on page 9 of this issue, we are excited about each of the new board members coming on to take their places. Please come to the Holiday Party to say good-bye to these esteemed board members and to see the new board inducted. Not on the ballot are the three Coordi-nating Directors. These are by appoint-ment of the President, and, to avoid suspense, I will be appointing Leslie Ellen Shear, Sterling E. Myers, and Joe Bell as Coordinating Directors.

Part Two – Renewal of VAWAFor the second part of this column, I want to provide a little information about the renewal of the “Violence Against Women Act” (“VAWA”) on March 7, 2013, signed back into law by President Obama. This is from remarks I made at the AFCC inter-national conference in Los Angeles 2013 as part of the domestic violence update. First let me note, that in spite of the title, the provisions of the law have always extended to include men as well. As a federal law, VAWA affects all 50 states and all U.S. territories. It is the cornerstone of our nation’s response to domestic and sexual violence.

VAWA first became law in 1994. It was drafted by the office of then Senator Joe Biden and had the support of a broad coalition of advocacy groups. It passed Congress with bipartisan support and was signed into law by President Clinton.

VAWA grew out of the World Conference on Human Rights held in Vienna 1993, and the Declaration on the Elimination of Violence Against Women, which was also stated in 1993. Both acknowledged that domestic violence is a public health policy and human rights concern. Although there was an acknowledgement at the World Conference that men may be victims

of domestic violence as well, globally, the statistics of violence against women warranted the focus on violence against women.

In the U.S., the passage of VAWA was a result of extensive grassroots efforts in the late 1980’s and 1990’s by advocates and professionals in the battered women’s movement, sexual assault, victims services, law enforce-ment, prosecutor’s offices, the courts, and the private bar urging Congress to adopt significant legislation to address domestic and sexual violence.

The 1994 Act provided funding toward investigations and prosecution of violent crimes against women, and imposed automatic and mandatory res-titution from those convicted of violent crimes. After it passed, one aspect of the original VAWA was struck down by the Supreme Court in 2000. That was the provision that allowed women the right to sue their attackers in federal court. Those actions are now confined to state courts.

The law was reauthorized by Congress in 2000 and in 2005, but it expired in 2011. In 2012, it was up for renewal but, it became a political foot-ball. There were provisions to extend the Act’s protections to same-sex couples, to allowing battered undocu-mented individuals to claim temporary visas, and also to extend VAWA to Native Americans living on reserva-tions when they were victims of non-tribal people from off the reservations. Finally, in February 2013 an extension was passed by Congress, and it was signed into law again by President Obama on March 7, 2013.

Since its original passage in 1994, VAWA has expanded to include dating violence and stalking. One of the great-est successes of VAWA is its emphasis on a coordinated community response to domestic violence, dating violence, sexual assault and stalking of women. According to statistics, the rate of sexual violence against women and girls age 12 or older fell 64 percent in a decade after VAWA was passed, and has remained stable for five years. Accord-ing to Justice Department statistics, in 2010, women and girls nationwide experienced about 270,000 rapes and sexual assaults, compared with

556,000 in 1995. Many believe that VAWA has created more awareness by the police and has had a positive effect on police response. When President Obama signed the 2013 reauthoriza-tion, he made the point that even so, today 1 in 5 women will be raped during their lifetimes. Of course, all of these statistics vary because DV is still a severely under-reported crime.

As it was passed in 2013, the reauthorized VAWA expands federal pro tections to the Lesbian, Gay, Bisexual, and Transgender survivors of domestic violence. The LGBT com-munity has the same rates of violence as the heterosexual community, but they sometimes face discrimination when seeking help and protection. VAWA ensures that all victims of violence have access to the same services and protec-tion to overcome trauma and find safety.

The 2013 version of VAWA autho-rized some $659 million a year over five years for programs that strengthen the criminal justice system’s response to crimes against women and some men, such as transitional housing, legal assistance, law enforcement train-ing and hotlines. One element of this year’s renewal focuses on ways to reduce sexual assaults on college campuses. The 2013 version also reautho rizes the Trafficking Victims Protections Act, adds stalking to the list of crimes that make immigrants eligible for protections and authorized programs to reduce the backlog in rape investigations.

Also, it gives tribal authority on reservations to prosecute non-Indians for abuses committed on tribal lands. VAWA 2013 has helped to prevent discrimination against and unjust evic-tions of survivors of domestic violence in public and assisted housing. It explic-itly protects victims of sexual assault in all federally subsidized housing pro-grams and creates emergency housing transfer options for them.

In short, VAWA 2013 was designed to close crucial gaps in services and justice. It authorizes funding for many different community violence preven-tion programs. It continues to be the cornerstone of our nation’s response to domestic and sexual violence.

Continued on page 31 (President)

PresidentContinued from page 3


“This town is so small . . .” . . . I went to the local emergency room, and I was the only patient

in the ER. This town is so small, that when I got there, there was only one nurse and one doctor on duty. Both the doctor and the nurse were my clients. Here in Mammoth Lakes, Mono County, California, the town is so small, the doctors treat their attor-neys and the attorneys advise their doctors. The Court Clerk is married to our plumber; when I call the plumber, the Court Clerk answers the phone.

When I first started practicing law in Mammoth Lakes in 1988, we needed to dial only the last 4 digits of any local phone number to get through on a call. At that time, there were only three traffic lights in the entire county. There were only two judges – a superior court and a municipal court judge. The “courthouse” was a damp, dark alcove above a ski boot store. Back then, my husband (with whom I partner) and I took our dog to the office every day. There were about only 15 lawyers in Mammoth Lakes, counting the entire County Counsel’s office and the District Attorney’s office. Back then, most attor-neys in town did not have fax machines, and to those attorneys, we had to hand deliver if we wanted it to get there same day. Hand delivery, however, never required more than a five minute drive here in Mammoth Lakes.

Times have changed. We now have to dial eleven digits for every phone number, whether local or long distance. There are now five traffic lights in the county. We have a great big beautiful new courthouse (with two courtrooms and an extra hearing room). There are, however, still only two judges, there are still only about 15 lawyers in town, and we still bring our dog to the office every day.

Mammoth Lakes perches about 8,000 feet above sea level, in the remote Eastern High Sierra, five hours from Los Angeles County, three hours from Reno, and at least 6 hours from San Francisco. When my husband and I lived in June Lake (15 minutes up the road) we could, and did, walk into Yosemite National Park from our house. (No, we could not see Russia, or Alaska.) The ski lifts are a short walk or drive from anywhere, permitting a “few runs at lunch” for those so inclined, and in the summer, we regularly hike and bike around the pristine lakes and trails. We can see the stars at night. I was asked to write an article about small town law practice, and I readily agreed. It would be difficult to catalogue all of the idio-syncrasies of practicing family law in a small town, but a few do come to mind.

ConflictsWe have found over the years that we simply can’t offer free consultations for potential family law clients. The reason: with so few attorneys in our two counties practicing any family law (about seven), there occasionally are litigants who will meet with one of us with no intention of hiring us, but rather to disqualify us from representing the other party. On at least one occasion, this has caused real harm to a litigant whose spouse has effectively prevented the other from hiring any local attorney. I have heard that such things happen in the big city, where a client can elimi-nate the top law firms or accounting firms, but in a large metropolitan area, there is always a competent alternative. That’s not the case here, where only a handful (or a handful and a half) of local attorneys practice family law.

The judges occasionally have con-flicts, too. It’s typical, and frequent, for a judge to announce in open court that

he has prosecuted one of the litigants or one of the witnesses, or has seen the litigant in court on another case, or knows the litigant socially, or knows a witness professionally. Most times, the judge can remain impartial, and remains on the case. Sometimes the

Ms. Silverman is a partner at the Law Offices of Gephart and

Silverman, A.P.C. in Mammoth Lakes, California. She received her B.A. from Oberlin College in 1976,

and her J.D. from New York University School of Law in 1979,

where she was Articles Editor of the Annual Survey of American Law. She received her L.L.M. in Public Law from Georgetown University School of Law in 1980, after which

she was a Trial Attorney at the United States Department of Justice,

Antitrust Division, in Washington D.C. Ms. Silverman has been in

private practice since 1983, moving to the Eastern Sierra in 1988.

Since then, she has concentrated her practice in the field of family

law. She became a Certified Specialist in November 2008.

Small Town Practice – or, Northern Exposure Meets LA Law (Well, Sort Of)

Claudia Silverman, cfls

Mono County • [email protected]


judge recuses himself. If both judges are recused, we are left with a visiting judge. Of course, this imposes a natural limit on the activity in a family law case.

Our four judges (two in Inyo County and two in Mono County) handle juvenile, family law, civil, criminal, probate, writs, and even small claims. Thus, speaking only hypothetically, of course, a judge in either county could handle both the criminal proceedings (felony spousal battery) and the related divorce proceeding, in which the victim (batteree?) divorces the batterer.

Custody and Visitation Issues Unique to the High Sierra and Other Rural VenuesWhen children are in danger from an abusive parent, and supervised visita-tion is ordered, our geographic remote-ness can be a serious problem. We have neither a center nor even a single trained professional dedicated to provid-ing supervised visitation. There are no licensed or professional visitation super-visors in all of Mono or Inyo Counties. If supervision is needed, it is relegated to a litigant’s friend or relative, without any training or experience in supervis-ing visitation. Naturally, this can and often does cause serious problems for the litigants and for the child.

Mediation services are limited largely to court appointed mediation of visitation issues. We have no attorneys in our area who dedicate their practice to mediation of divorce or family law cases. We do not have “recommending mediation” in any formal sense. Some of the mediators (we have only about 6 mediators in two counties) will add a “recommendation” at the end of the report, such as, “I suggest a custody evaluation.” One mediator in Inyo County has recently begun making somewhat formal recommendations, at the request of one of the judges. This practice is relatively limited, new and somewhat experimental here.

We have no local custody evaluators. The nearest custody evaluator, and the one regularly appointed by our courts, is located in Victorville, California, more than 250 miles from Mammoth Lakes, a 4½ hour drive. The parents and children thus must travel many hours to the custody evaluator’s office.

Our one custody evaluator performs scores of custody evaluations for Mono County, Inyo County, San Bernardino County, Kern County and Orange County. As a result, our evaluations can take many months, or as much as a year or more, to complete. These factors tend to result in few cases being referred for a custody evaluation.

Our excellent family law jurists, fac-ing the considerable challenge of a lack of recommending mediation and lack of readily available custody evaluators, have created a different model. In nearly all high-conflict cases, minor’s counsel is appointed to represent the children. Three of us are regularly appointed in such cases, but, absent a conflict, most of the children in both counties are represented by a single attorney. In some cases, where all of the qualified children’s attorneys have a conflict, the court has appointed a child custody evaluator as the only available option.

While a family case is pending, the judges here often schedule regular “status” hearings. Such hearings, during tense periods, are typically scheduled on a monthly basis, often for a year or more. This extraordinary commitment of time to each case is extremely effective in keeping judicial tabs on the parents’ compliance with court orders, check-ing on the status of visitation schedules, and keeping parents accountable.

Other creative options have emerged, as well, out of sheer necessity in our remote area, and thanks to the insight-fulness of our judges. In one case I recently handled, each parent con-tended the other one had mental health issues that prevented the other from being a fit parent. In the absence of an available custody evaluator, the judge appointed a local and well-respected psychiatrist to evaluate each of the parents. Because this was a psychia-trist, not a Ph.D. custody evaluator, the evaluation was based on the parents’ self-report, and both parties “passed” their mental health test. With the fur-ther assistance of our dedicated judge, the parties met with counsel and the judge, and the judge spent an entire day helping us to craft a workable parenting plan, fully resolving the case. Would this, or could it, happen in LA County or any other larger court system?

Limited Local ExpertiseDue to our remoteness and small popu-lation, we have no local forensic accoun-tants or business evaluators, and no personal property appraisers. We have no forensic psychologists or psychia-trists. Nor do we have IME’s or voca-tional counselors. In fact, we have no forensic experts of any kind. Our clients must travel hundreds of miles for these services or pay experts and specialists to come here. In my experience, this has not been a problem. Where there are issues of a magnitude requiring such expertise, we obtain it, and the clients will bear the cost. Many cases resolve without hiring such experts.

We have no special masters, par-enting coordinators or case managers. We have no private judges. If we need these resources or expertise, we seek them out of county.

We have no parenting coaches. We have no attorneys who practice collaborative law. As a result, the attorneys and local counselors develop hybrid approaches to assist our clients and resolve cases.

We have so few therapists/counselors, that it is sometimes hard to find a good fit for a client, and sometimes impossi-ble to find a separate counselor for the wife, husband, and each of the children. In some cases, a therapist who has acted as a couple’s therapist switches hats to counsel one of the divorcing parties. Sometimes a therapist for one of the parties switches hats to act as a co-parenting counselor. We gener ally all try to work together to get the best possible results.

Access to the Court Is Not an IssueOur litigants are very fortunate to have full access to our family law courts. As stated above, our judges conduct regular review hearings in custody matters, helping to resolve co-parenting and other issues that may arise.

Custody cases seldom go to con-tested trial. The judges work diligently and effectively to bring matters to a jointly accepted resolution, and in most cases, that resolution is equally shared custody.

Continued on page 32 (Silverman)


Faithful readers will recall from the last issue that your association has weighed in on a dozen Senate

and Assembly bills this session. As to those bills, here are the latest, as of this writing:

AB 157 (Campos-D)Adds “False Personation” to Domes-tic Violence Prevention TROs. “False impersonation” (in the statute, “false personation”) is, not surprisingly, an area of increasing abuse.1 While dispar-aging remarks may be protected speech, what is not protected is falsely assuming another’s identity and then publishing photos, comments, or other representa-tions on the internet’s social websites as though they were posted by the victim. ACFLS supported this bill if amended, and our clarifying amendments were adopted.

Status: The bill has passed both houses and was enrolled 8-23-13.

AB 161 (Campos-D)Protective Health Insurance Orders in DVPA Cases. The State Bar’s Family Law Executive Committee (FlexCom) sponsored this bill to enable domestic violence litigants to obtain orders simi-lar to the restraining orders issued as a part of the Summons in dissolution/legal separation/nullity actions, so that parties in a DVPA action have a means of preventing the other parent from dis-continuing existing insurance coverage, particularly for the benefit of the parties’ minor children. ACFLS supported the bill after some clarifying amendments.

Status: The bill has passed both houses and was enrolled on 8-23-13.

AB 176 (Campos-D)Most Restrictive Restraining Order to Control. When there are multiple restraining orders in effect (whether

from different counties, or from differ ent divisions, e.g. Criminal, Dependency/Juvenile, and Family, of the same court) with differing provisions, peace officers don’t know which to enforce. These issues often arise at night or on week-ends when the courts are closed. This bill was initially intended to make the most restrictive of competing orders enforceable, but there were multiple problems with logistics and interpreta-tion. ACFLS met with the author and stakeholders and crafted a better bill, which essentially provides that restrain-ing orders from the criminal court still trump those from the family court, but in the event there are multiple criminal or family court orders, the most recent is to be enforced; if there is an Emer-gency Protective Order (EPO), that is

to be enforced; and the overarching premise is that if there is a no contact order in effect, that will be enforced pending the parties’ return to court.

Status: The bill has passed both chambers and was enrolled 8-30-13.

AB 251 (Wagner-R)Electronic Court Reporting. After amendments, this bill would have amended Government Code section 69957 to include “a family law case” in the list of cases for which electronic reporting may be utilized if a Certi-fied Shorthand Reporter is unavailable. Given its discretionary nature, ACFLS supported the bill.

Status: The bill did not clear the Assembly Judiciary Committee in the face of strong opposition from court reporters.

AB 414 (Fox-D)Grandparent Visitation Rights. This bill addresses two separate issues. It would delete the requirement for a pre-existing relationship engender-ing a bond between grandparent and grandchild, in order for grandparents to have visitation rights over the parents’ objection. Separately, under Family Code section 3047, when a military parent deploys, he or she may designate extended family members who have a pre-existing relationship and bond with a child of the deploying parent, to exercise visitation while the parent is deployed. The second part of this bill would eliminate the requirement of a pre-existing relationship and bond, but only for grandparents. That prerequisite would still be in place for aunts, uncles, and other extended family members. ACFLS opposed the bill unless it was amended to retain the requirement for a prior relationship and bond, but to provide an exception for good cause

Report of the Legislative DirectorJohn D. Hodson, cfls

ACFLS Legislative Director

Solano County

[email protected]

John D. Hodson, CFLS, AAML, is managing partner of Hodson

& Mullin, Attorneys at Law, a six- lawyer firm with two

locations in Solano County. He is a retired Air Force JAG officer,

past chair of FlexCom, and current Director of Legislation

for ACFLS.


Continued on page 32 (Hodson)

shown (i.e., a very young child might not have a prior bond with relatives geo-graphically separated, and courts should be permitted to consider such factors).

Status: The bill is still before the Assembly Judiciary Committee, since an April 2 hearing was postponed.

AB 522 (Bloom-D)Tolling of the Five-Year Statute of Limitations. ACFLS supported this FlexCom-sponsored bill to exempt a number of family law cases from the 5-year statute of limitations (CCP 583.161) which causes cases to be dis-missed by operation of law if they are not brought to trial or judgment within 5 years of initial filing of the petition. Cases with active support orders are already exempted. This bill adds addi-tional exemptions, including cases with active custody/visitation orders issued, domestic violence restraining orders issued, etc.

Status: The bill sailed through the legislature, and was enrolled and pre-sented to the Governor back on 6-20-13. Congratulations to our colleagues at FlexCom, many of whom are active ACFLS members, for their fine work on this legislation!

AB 648 (Jones-Sawyer-D)$30 Court Reporter Fee. This bill provides uniformity for the courts to collect the $30 court reporter fee (for hearings under an hour) from the moving party with each filing of a Request for Order. ACFLS supported the bill if amended to remove a sub paragraph that created potential confusion about whether court report-ers are required in family law cases (a battle being fought else where). The author accepted our amendment.

Status: The bill has cleared the Assembly and is still before the Senate as of 8-13-13.

AB 681 (Melendez-R and Skinner-D)Spousal Support. This interesting and controversial bill would have denied spousal support to a person convicted of committing a violent sexual assault upon a child of the parties, or of either party. Further, it would also have vacated any spousal support arrearages, and

would have empowered a court to order the convicted party to reimburse the supporting party any spousal support received between the date of com-mission of the offense and the date of conviction. ACFLS submitted a technical advisory letter on this bill. While no one “favors” an adult who commits a heinous act upon a child, there were multiple concerns about retroactive modification of support, tax implications, limitations on a court’s discretion, whether Family Code section 4320(n) (“other factors”) already covered these considerations, and so forth. The legislature took our advice to heart, and made substantial amendments such that the bill now simply clarifies that the trial court must consider, among the Family Code sec-tion 4320 factors, circumstances where a party has committed abuse against a child of either or both parties. ACFLS supported the bill as amended, with Associate Legislation Director Dianne Fetzer (Sacramento) presenting testi-mony on your behalf.

Status: The bill passed both houses and was enrolled 8-30-13.

AB 958 (Jones-D)Access to Child Custody Evaluation Reports. The Board of Behavioral Sci-ences sponsored this bill seeking to gain automatic access to child custody evalu-ation reports in cases where the Board (the licensing agent for psychologists, much as the State Bar is for lawyers) is investigating misconduct complaints against an evaluator. ACFLS opposed the bill on numerous technical grounds, including privacy concerns for litigants and children who are required to par-ticipate in child custody evaluations.

Status: An April 16, 2013 hearing was postponed by the Assembly Judi-ciary Committee, and the bill remains in that committee where it will be carried over into the second year of the legislative cycle (a “2-year bill”).

AB 1403 (Assembly Committee on Judiciary)Gender Neutral Terms in Parentage Statutes. ACFLS supported this bill, which was designed to change language in the parentage statutes to gender neu-tral. The only controversial portion (see SB 115, below) was removed from the bill.

Status: The bill has cleared the Assembly and remains before the Senate Appropriations Committee as of 8-30-13.

SB 115 (Hill-D)Sperm Donor Standing in Presumed Parentage Cases. ACFLS supported this bill, which was presented as doing nothing more than codifying existing case law with regard to whether a sperm donor should have standing to seek to establish a parent-child relationship when he qualifies under Family Code section 7611(d) or (f) – the most com-mon scenario being where the mother permits the sperm donor to receive the child into his home and hold the child out as his natural child, and a parent-child relationship develops socially (and not based upon biology). [In re Nicholas H (2002) 28 Cal.4th 56, 120 Cal.Rptr.2d 146, 46 P.3d 932 provides interesting reading from the California Supreme Court as to what constitutes “an appro-priate action” to apply the statutory rebuttal to 7611(d).] Controversy has arisen over whether the bill could result in unintended consequences. ACFLS has supported the bill to date.

Status: The bill has passed the Senate, but is still pending before the Assembly Judiciary Committee, where it will be carried over to the next legisla-tive year as a “two-year bill.” We’ll keep you posted.

SB 274 (Leno-D)More Than Two Biological Parents. This bill seeks to permit the court to find, in those rare cases where it is appropriate, that a child in California may have more than two biological parents. After much careful and respectful (read “heated”) discussion and deliberation, the ACFLS Board determined not to submit a position letter, primarily because the Board believes ACFLS members are likely to be very divided on the issues presented, such that any position the association might take would likely not reflect the considered opinion of a large number of our membership.

Status: The bill has cleared the Senate and is pending before the Assembly, where it underwent some


It has been the vision of ACFLS for many years to establish an Outreach Program . . . a program that would

bring quality continuing education to areas that are remote and/or otherwise under-served. These programs would be for credit, at no charge and would utilize the ACFLS DVD Library. In

1985, one such program was presented in Amador County by Hugh O. Allen (now a member of the ACFLS Outreach Committee). Unfortunately, without further structure Outreach did not get off the ground. Nonetheless, Leslie Shear kept the vision and during her tenure as ACFLS President she enlisted the energies of David Borges and me to establish a sustainable Outreach Program. David as a Board member and I as an ad hoc board member worked together until his untimely passing. I continued on, and thereafter was elected to a newly created position as Outreach Director for 2011.

With the help of Board Member suggestions, and personal contacts I was able to create an enthusiastic and energetic Outreach Committee consisting of ACFLS members repre-senting relevant counties throughout the state. Members and Counties are: John McDaniel, Fresno; Jeralyn Ehlers, Santa Barbara; Hugh O. Allen, Gold Country; Ann Lewis and Greg Zumbrunn, Upper Desert San Bernar-dino; Mickey Gwin, Merced; Teresa Merzoian, Kings; Justin O’Connell, Monterey; Maralee Nelder, Nevada; and Erin Tomlinson, Imperial.

I cover the far northern “Cow Counties.” Together, we established

protocols for the programs, vetted ACFLS DVDs and now have an ACFLS Outreach Library containing DVDs and electronic program materials. Our official kickoff for Outreach was in 2011, and since that time we have provided 566 hours of quality continuing edu cation to family lawyers throughout California – and I am especially thankful for and proud of the work of each and every member of my Outreach Committee! They have worked tirelessly, notwithstanding the fact that each has a very busy family law practice.

Since I have served as Outreach Director for three years, I will be termed out at the end of this year. You will note that Teresa Merzoian has been nominated for Outreach Director in 2014. Teresa is not new to Outreach. She is not only a member of the Outreach Committee, she is the widow of David Borges, with whom she worked closely and assisted in his Outreach work. I will remain on the Outreach Committee under her. In the meantime, if you practice in a remote or under-served county, please consider joining the Outreach efforts in bringing quality continuing education to your county. I may be contacted at [email protected]. n

Outreach Committee ReportLinda Seinturier, cfls, ACFLS Outreach Director

Shasta County • [email protected]

Linda L. Seinturier has been practicing law for 29 years.

She is a co-founder of Collaborative Lawyers of

Northern California and founding board member of International

Academy of Collaborative Professionals. She was the first

woman President of Shasta-Trinity Counties Bar Association,

and past chair of the Family Law Section of STCBA.

Ms. Seinturier has been a Certified Family Law Specialist

for 20 years, and is a member of ACFLS.

SAVE THE DATE!22nd Annual ACFLS Spring Seminar

March 21–23, 2014Rancho Las Palmas Resort and Spa Rancho Mirage, California

“Truth or Consequences:The Intricacies of Fiduciary Duties”


Since 1979, legal specialization in family law has been a part of the State Bar certification program.

ACFLS was founded in 1980 and it now has a membership of 631 attor-neys. The Membership and Benefits Committee (MBC) was created in late 2010 to help the Board focus on new ways to increase the numbers of Cer tified Family Law Specialists who are members of ACFLS and to improve the services and benefits we provide to our members.

With the assistance of ACFLS staff, we work to promote and preserve the Family Law Specialty, to increase the visibility of our organization, market our continuing legal education events and products, and improve the quality of our services for members, the Family Law Courts and Bar of California. [ACFLS Bylaws, Article II, Mission Statement.] We have continued those efforts this year.

Current members of the Commit-tee are Dorie Rogers, Avery Cooper, Sterling Myers, Paul Brimberry, Tracy Duell-Cazes, as well as our staff and other Board members from time to time. The committee meets monthly by teleconference.

The major accomplishment of the MBC over the past three years has been the creation and development of the Orange County Chapter of ACFLS. That group now has a dedicated core group of leaders and a very active continuing education program as shown on our web page and elsewhere in The Special-ist. The creation of the Orange County Chapter together with our successful CLE programs and the active promotion of ACFLS statewide using the “ACFLS Advantage” flyer has resulted in a sub-stantial increase in our membership.

Another recent innovation was the distribution of the ACFLS Membership Survey in 2012 and again this year. This simple tool was created by the

committee to get direct feedback and suggestions to improve our organization as well as to recruit members to serve on our Board and committees. So far this year, there have been 70 responses, approximately 10% of our membership. Two responders received incentive prizes for their early responses: Charli Hoffman of San Mateo and Ane Murphy of San Jose, California.

Some of our other activities and duties include assisting staff with the editing of the ACFLS Membership Directory, working with the State Bar Board of Legal Specialization to encour-age lawyers to become certified special-ists, helping promote our CLE library of products and events, and reaching out to certified specialists via other family law publications. Membership on the MBC includes non- Board members and any ACFLS member is welcome to apply. n

Membership and Benefits Committee ReportJoseph J. Bell, cfls, ACFLS MBC Director

Nevada County • [email protected]

A lawyer for 32 years, Joseph Bell’s primary area of practice is family law.

He was certified as a family law specialist by the State Bar of

California in 1995 and has handled hundreds of dissolution of

marriage, dissolution of domestic partnership, custody, visitation and support matters, as well as juvenile

dependency, guardianship and adoption matters. He emphasizes

preventative family law.He has served as mediator,

arbitrator and pro tem judge in family law and civil matters. He has substantial experience in personal injury/tort actions arising out of personal relations. He has also litigated employment disputes

including wrongful termination and harassment claims.

Mr. Bell was a member of the Family and Juvenile Law Advisory Committee for the Judicial Council of California and a Court-Appointed

Special Advocate (CASA) for children. He regularly provides pro bono advice, information and representation to litigants

without resources and community non-profit organizations.

My Final WordCome to the Holiday Party, December 7, 2013, at the Hotel Monaco in San Francisco, and Save the Date for the 2014 Spring Seminar! The theme of the 2014 Spring Seminar is: “Truth or Consequences: The Intricacies of Fiduciary Duties.” The dates are March 21, 22, and 23, 2014, back at beautiful Rancho Las Palmas. Look for colorful brochures which will be mailed in November. Also, the ballots for the election of the new board will be sent out between October 15, 2013, and November 1, 2013. All ballots must be received by December 1, 2013, to be counted. Please watch for the ballot, and please vote!

This is your organization! n

PresidentContinued from page 25


HodsonContinued from page 29

technical amendments on 8-22-13. It is expected to pass.

ACFLS position papers on these bills are in the public domain once they are submitted to the Legislature. You may request a copy by e-mail to: [email protected].

Twenty ACFLS members comprise our Legislative Review Committee this year. Be sure to thank them for their donated time and excellent work on your behalf when you see them out and about: Jill Barr, Michele Brown, Dianne Fetzer, Debra Frank, John Hodson, Marjorie Huntington, Michelene Insalaco, Veronika Melamed, Chris Melcher, Mary Molinaro, Faith Nouri, Sherry Peterson, Lynette Berg Robe, George Seide, Leslie Ellen Shear, Jennifer Wald, Marshall Waller, Diane Wasznicky, and Stephanie Williams.

Endnotes1 In regard to “false personation” in social media , see Rhoda A. Chandler’s “The Ups and Downs of Social Media Evidence in Litigation,” page 20 of this issue. n

Join ACFLS’s Lively On-Line CommunityThe experience and wisdom of our members

is our most valuable member benefit. Between issues of the Journal and CLE programs, ACFLS members share their experience and expertise

online through our website, Family Law Blog and active Listserv. Please share your perspective on

our Blog and Listserv.

Visit our website at www.acfls.org for:• Latest ACFLS news • Registration for ACFLS events• Order ACFLS CLE on DVD • Online membership management• ACFLS Members’ Directory • Archived issues of the ACFLS Journal• Research database • Board of Directors information

Converse with members on the ACFLS ListservVisit www.acfls.org/members/forum.php for instructions on subscribing to the Listserv, posting to the Listserv and accessing Listserv archives. Members use the Blog for practice tips, referrals and discussion of recent appellate decisions.

Read the ACFLS Family Law Blog and post comments or blog entries

Visit www.acfls.org/famlawblogAnyone may post comments to blog entries.

To become a blogger yourself, email our webmaster ([email protected]) for blog credentials and contribute to our Blog.

For more information about ACFLS’s online community contact:Technology Director Seth Kramer, cfls ([email protected])Webmaster Bonnie L. Riley, j.d. ([email protected])

ACFLS MEMBERSHIP APPLICATIONEligibility for ACFLS membership is limited to attorneys certified as family law specialists

by the State Bar of California, Board of Legal Specialization.

Applicant name _______________________________________________________________

SBN _________________________________ Date certified as CFLS by BLS ______________

Firm name ___________________________________________________________________

Address ______________________________ City/State/Zip ___________________________

Telephone ____________________________ Fax ___________________________________

Email ________________________________ Website _______________________________

If more than one member of the firm is joining, please attach additional page with information about each applicant.

Dues for first member in firm $250. Dues for ________ addl. members from same firm $175 each.

Total payment $ _________________ Check enclosed Charge to Mastercard Visa

Credit card account no. _________________________________ Expiration date ___________

Name as it appears on credit card _________________________________________________

Authorized signature ___________________________________________________________

Credit card billing address Same as above Different billing address _______________

____________________________________________________________________________Join online at www.acfls.org or send your application and payment by mail to: Dee Rolewicz,

ACFLS Executive Director, 1500 W. El Camino Avenue, Suite 158, Sacramento, CA 95833-1945 or fax: (916) 930-6122 or scan and email to [email protected]

As an alternative to contested hear-ings on busy law and motion days, our judges often will suspend proceedings in open court, and ask to see the attor-neys in chambers. More often than not, with arms twisted, and after consulta-tion with the clients, an agreement is reached.

When a Marital Settlement Agree-ment or Stipulated Judgment is submit-ted to the court, the Judgment will nearly always be entered within a week of submission. I understand that time frame is not to be expected in the larger counties.

ConclusionIn my experience, the challenge of our remoteness does not hinder the working of justice, but presents us with the opportunity to carve creative solutions to family law problems. n

SilvermanContinued from page 27


No Envelopes! No Stamps! No Paper Order Form!To order ACFLS CLE

on DVD/CD/MP3 go to the online store at www.acfls.org

If you are an ACFLS member, don’t forget to sign in before ordering, for member pricing.If you are a California Family Law Certified Specialist, and not yet an ACFLS member, you should be!ACFLS is a State Bar of California–approved MCLE provider and an approved family law provider by the State Bar of California Board of Legal Specialization: Provider #118.

Browse the recent Spring Seminars, 2013 programs and Topical Index on the next two pages.

CLE on DVD/CD/MP3

GrayContinued from page 24

of each state to decide the issue expeditiously and the procedures necessary to present the evidence. [¶] (8) The familiarity of the court of each state with the facts and issues in the pending litigation.” (Ibid.)

In this case, neither parent filed a motion for a determination that California was an inconvenient forum. The trial court raised the inconvenient forum issue on its own motion, based on evidence that a custody case was pending between the same parties in another jurisdiction. Under the circumstances, the court should have provided the parties with an opportunity to submit evidence relevant to the court’s determination of whether California was a convenient forum or Illinois was an appropriate

forum. This was not done, and therefore, the order staying the proceedings was in error.

. . .In this case, the only express finding made by the

trial court was the court’s assumption that medical records and similar evidence are probably located in Illinois. However, there is no evidence to support that any such records exist or are necessary to resolve any issue in the pending litigation. Without the parties having had an opportunity to submit evidence on the inconvenient forum issue, and lacking any evidence in the record that California is an inconvenient forum or Illinois is a more con-venient forum to resolve the parties’ custody issues, we decline to presume the trial court made the factual findings necessary under section 3427.

The panel reversed and awarded Barry his costs on appeal. n


Recent Spring Seminars21st Annual Spring Seminar 3/22/2013 – 3/24/2013“Call Your First Witness . . . Expert or Not”

Expert Witnesses: The Strategy –Hon. Kenneth Black, Ret.; Steven Kolodny, CFLSGoodwill Hunting: The Never-Ending Debate – Edward J. Thomas, CFLS; Ron Anfuso, CPA; Drew Hunt, CPAMental Health Experts in Custody and DVRO Cases: To Use or Not – Michael Kretzmer, CFLS; Leslie Drozd, Ph.D.; Mary Lund, Ph.D.Get A Job! How the Experts Can Help – Christopher Melcher, CFLS; Lynne Tracy, M.A., CRC; Richard G. Rappaport, M.D.

Unique Retirement and Deferred Compensation Issues: Experts Required – John Hodson, CFLS; James Crawford, J.D.; Barbara DiFranza, CFLS; Ann Fallon, CFLSCool Evidentiary Tools for Savvy Lawyers – Peter Walzer, CFLS; Hon. Mark JuhasLook Ma, No Expert: How to Do It – Hon. Robert Schnider, Ret.; Judith Bogen, CFLS; Ron Brot, J.D.Ask the Judges: the Last Word on “Call Your First Witness . . . Expert or Not” – Hon. Louise Fightmaster, Comm.; Hon. Michael Gassner, Comm.; Hon. Dianna Gould-Saltman; Hon. Thomas Trent Lewis; Moderator: Garrett C. Dailey, CFLS

20th Annual Spring Seminar 3/23/2012 – 3/25/2012“Just the Facts. . . An Advanced Course in Family Law Evidence:

Discover, Obtain, Admit and Exclude It”Expert Wizardry in Presenting and Defending Income Adjustments for Support: Hogwarts and All (Unabridged Version) (in 2 Parts) – Ronald S. Granberg, CFLS; Robert E. Blevans, CFLSFinding Your Way Through the Executive Compensation Maze – Compensation Experts: Mark Lipis; Terry L. Pasteris, CCP, GRP; Lynne Yates-Carter, CFLSDouble-Dipping: Bad Manners or Irresist-ible Temptation? – Michelene Insalaco, CFLS; Christopher C. Melcher, CFLS

When Money Disappears Offshore – Discovery and Recovery – Robert C. Wood, CFLS; Edward J. Thomas, CFLS; Daniel J. Jaffe, CFLSImputed Income – The Netherworld of Gross Cash Flow for Support – Bruce Cooperman, CFLS; David Swan, CPA/ABVWhat Law Applies? – Hon. Kenneth Black, Ret.; Hon. Thomas Trent LewisAsk the Judges: the Last Word on “Show Me the Money” – Garrett C. Dailey, CFLS (moder ator); Hon. Lorna Alksne; Hon. Thomas Trent Lewis; Hon. Michael J. Naughton, Ret.; Hon. Cynda R. Unger

CLE Programs – New for 2013“Notable Mistakes That Lawyers Make with Employment Benefits and How to Excel by Avoiding Them” – Barbara DiFranza, CFLS (1/22/13)“Drug Testing: Impact of Drugs & Narcotics on Parenting; Testing Protocol Issues; Expert Testimony – What Every Family Law Attorney Should Know” – Sue Ramsden, Forensic Analyst, J.D. (2/26/13)“From Click to Courtroom: The Legal Ramifica-tions of Internet Addiction” – Dr. Elaine Brady; Lynne Yates-Carter, CFLS (2/12/13)

“Justice for Bad Actors” – Stephen Temko, CFLS, CALS, AAML (3/4/13)“Untangling Reimbursement Claims: Analyzing Them, Making Them, and Defending Against Them” – Dawn Gray, CFLS (3/26/13)“Substance Abuse Evaluations” – Colleen Moore, MFT (4/23/13)Rethinking Parental Alienation in 2013” –Kathy Kuehnle, Ph.D.; Leslie Drozd, Ph.D.; Lisa Kiriakidis, CFLS (6/10/13)


ACFLS CLE on DVD/CD/MP3 TOPICAL INDEXCUSTODY

• The Five W’s and the H of Deposing Child Custody Litigants: Who, What, When, Where, Why and HOW – Leslie Ellen Shear, CFLS, CALS

• What Every Family Law Practitioner Should Know About 3rd Party Placement in Guardianships and Adoptions – Janet Uthe, CFLS; Thomas Volk, J.D.

• Everything Family Law Practitioners Should Know About the Three Levels of Supervised Visitation in Custody Disputes – Jim vanEck, PPS; Stephanie H. Stilley, MSW

• Juvenile Dependency: A Practical Guide for Family Law Attorneys – Gregory Ward Dwyer, CFLS

• Dispelling Common Myths and Misconceptions about the UCCJEA – William M. Hilton, CFLS; Caralisa Hughes, CFLS

• An Imperfect Toolkit: Parental Abduction Prevention – Leslie Ellen Shear, CFLS

• Beyond the 730 Evaluation: Using Retained Experts in Custody Litigation – Jacqueline Singer, PhD

• Dude, I’m 14 Years Old and Here to Address the Court. . . Now What? – Leslie Ellen Shear, CFLS, CALS

• Children on the Witness Stand: Will Family Courts Emulate Dependency Courts? – Hon. Mark A. Juhas; Commr. Steff Padilla

SUPPORT• Business Income Available for Support – Robert E.

Blevans, CFLS; Ronald S. Granberg, CFLS• Dissomaster: Advanced Features and Concepts –

Kenny Pierce, MBA, AVA, CFFA• Spousal Support: The Historical Perspective and

the Future Vision – James A. Hennenhoefer, CFLS; Diana Richmond, CFLS

• How to Prove the Elements: Difference in Temporary v. Permanent Spousal Support and Burdens of Proof – Ronald S. Granberg, CFLS; Robert E. Blevans, CFLS

• Modifications, Step-Downs and Terminations of Spousal Support – Garrett C. Dailey, CFLS

• Income v. Cash Flow Available for Spousal Support – Stephen J. Wagner, CFLS; Cynthia V. Craig, CPA

• & Taxation Issues Relative to Spousal Support Orders – Sally White, CPA

• Special Issues Related to Disability Benefits in Child Support – Ron Ladage, J.D.; Kathleen Amos, J.D.

• Spousal Support and Marital Standard of Living Issues in Family Law: Marriage of Ackerman – Roundtable Discussion

• Imputation of Income for Child Support and Spousal Support Purposes – Nancy Perkovich, CFLS

• Expert Wizardry in Presenting and Defending Income Adjustments for Support: Hogwarts and All (Unabridged Version) (in 2 Parts) – Ronald S. Granberg, CFLS; Robert E. Blevans, CFLS

• Finding Your Way Through the Executive Compensation Maze – Compensation Experts: Mark Lipis; Terry L. Pasteris, CCP, GRP; Lynne Yates-Carter, CFLS

• Double-Dipping: Bad Manners or Irresistible Temptation? – Michelene Insalaco, CFLS; Christopher C. Melcher, CFLS

• When Money Disappears Offshore: Discovery and Recovery – Robert C. Wood, CFLS; Edward J. Thomas, CFLS; Daniel J. Jaffe, CFLS

• Imputed Income: The Netherworld of Gross Cash Flow for Support – Bruce Cooperman, CFLS; David Swan, CPA/ABV

• Show Me the Money: What Law Applies? – Hon. Kenneth Black, Ret; Hon. Thomas Trent Lewis

• Ask the Judges: The Last Word on “Show Me The Money” – Hon. Kenneth Black, Ret.; Hon. Thomas Trent Lewis; Hon. Michael J. Naughton, Ret.; Hon. Cynda R. Unger; Hon. Lorna Alksne

PROPERTY• Personal Goodwill – Cynthia V. Craig, CPA; Anthony S.

Dick, CFLS• Equitable Apportionment Tracings – Stephen J.

Wagner, CFLS• Finding The Hidden Value and Income in LPs and

Other Small Business Entities – Stacey Simonton, J.D.; Joseph Fletcher, J.D.

• Valuation of Professional Goodwill – Mary Martinelli, CFLS; Rob Wallace, CPA; David Black, CPA

• Practical Solutions to “Real” Estate Problems: Characteri zation and Division in a Down Real Estate Market – Ronald S. Granberg, CFLS; Robert E. Blevans, CFLS

• Upside Down and Inside Out: Coping With Foreclosures and Short Sales – D. Thomas Woodruff, CFLS; Jonathan G. Stein, J.D.; Randy C. Renfro, CPA, J.D.; Arnold Breyer, CFLS

• Beyond Pereira and Van Camp: Equitable Apportionment in a Chaotic Market – Dawn Gray, CFLS; Stephen J. Wagner, CFLS

• Practical Strategies for Business Valuation and Cash Flow Analysis in an Economic Downturn – Peter M. Walzer, CFLS; Jerry E. Randall, CPA

• Don’t Delay the Deferred Comp Issues: A Review of Pension and Retirement Division Law and How to Minimize Risks – R. Ann Fallon, CFLS; James M. Crawford, Jr., J.D.

• “The Last Word” on Characterization and Division – The Judges Will Take Your Questions Now. . . – Garrett C. Dailey, CFLS (moderator); Hon. Donald King (Ret.); Hon. Thomas Trent Lewis; Hon. Jerilyn L. Borack

• Collection of Spousal Support from Retirement Income Streams/Murray – Ann Fallon, CFLS; James Crawford, Jr., J.D.

• Facilitated Discussion of Two Key 2009 Cases: In re Mar riage of Dellaria and In re Marriage of Knowles – Bob O’Hair, CFLS; Jeff Posner, CFLS

• Family Law Real Property Issues in This Troubled Real Estate Market – Ronald S. Granberg, CFLS; Robert E. Blevans, CFLS

• Short Sales and Foreclosures of Primary Residences and the Basic Rules of IRC 108 – Keith E. Pershall, LLM; Anthony A. Arostegui, J.D.

• The Elements of Tassi Training – D. Thomas Woodruff, CFLS• Actuary Consultation – George W. McCauslan, FSA• The Effect of Refinancing Property on Characterization and

Reimbursement Rights: Real Estate Is Down, Walrath Is Up – Robert E. Blevans, CFLS; Ronald S. Granberg, CFLS

• The Proper Date of Value for Small Professional Practices: Imperato + Barnert = Green + Watts – Stephen J. Wagner, CFLS

• Title, Transfers and Transmutation Trial Practicum – Peter M. Walzer, CFLS; Christopher Melcher, CFLS

• Fundamentals of Transmutations – Dawn Gray, CFLS; Stephen J. Wagner, CFLS

• ’Til Death or Divorce Do Us Part: Probate and Family Law Crossover Issues – Hon. Mitchell Beckloff; Diane E. Richmond, CFLS; Avery Cooper, CFLS

• Ask the Judges: The Last Word on “Titles Transfers and Transmutations” – Hon. Thomas Trent Lewis; Hon. Michael Naughton; Hon. Maren Nelson

• The Wisdom of Solomon and How to Divide the Baby: A Guide to Property Division Facilitation – Michelle R. Witt, MA, MFT

• Upside Down Homes: The Problems, Solutions and the Raging Debate – Mary-Lynne Fisher, CFLS

TAX• Update on Tax Issues in Divorce, Including the New RDP

Rules – Beverly Brautigam, CPA, MBA in Taxation, PFS• Income v. Cash Flow Available for Spousal Support – Stephen

J. Wagner, CFLS; Cynthia V. Craig, CPA• & Taxation Issues Relative to Spousal Support Orders –

Sally White, CPA• IRS Update for Family Lawyers: What to Expect from the IRS

in 2009 – Steven J. Mopsick, J.D.• IRS Issues for the Family Law Practice – Steven J. Mopsick, J.D.• Alimony Recapture & When Support Payments Are Still Tax

Deductible When Not Paid to the Supported Spouse – Beverly Brautigam, CPA, MBA in Taxation, PFS

SUBSTANCE ABUSE• Substance Abuse in the Legal Profession – Thomas L. Russell,

LCSW; Michael S. Parr, M.D.• Chemical Dependency and Substance Abuse Issues in

Family Law – Thomas L. Russell, LCSW; Sue Ramsden, Toxicologist

• Drug Testing: Impact of Drugs and Narcotics on Parenting: Testing Protocol Issues, Expert Testimony: What Every Family Law Attorney Should Know – Sue Ramsden, Forensic Analyst, J.D.

APPEALS• Statement of Decision: The Nuts & Bolts You Need to Know –

Jay-Allen Eisen, CALS• How to Win Your Appeal at Trial – Bernard N. Wolf, CFLS• After the Waltz Is Over – Jay-Allen Eisen, CALS

DOMESTIC VIOLENCE• Everything Family Law Practitioners Should Know

About Domestic Violence Restraining Orders – Hon. Jerilyn Borack

• Representation Techniques and Closing Arguments in DVPA Matters – Julie Saffren, J.D.

BIFURCATION – STATUS• Everything Family Law Practitioners Should Know

About Revised Family Code § 2337: Navigating the Bifur cation Triangle – R. Ann Fallon, CFLS; James M. Crawford, Jr., J.D.

ATTORNEY FEES• 18th Annual Spring Seminar Pre- Conference Insti-

tute: Advanced Attorneys’ Fees: Maximizing Your Results in Making or Opposing Family Law Fee Requests, Practical Strategies, and Hot Issues – Hon. Kenneth Black (Ret.); Hon. Michael Naughton; Garrett C. Dailey, CFLS; Leslie Ellen Shear, CFLS, CALS

• Awarding Legal Fees – Lynne Yates-Carter, CFLSPSYCHOLOGICAL AND COUNSELING• Everything Family Law Practitioners Should Know

About the Three Levels of Supervised Visitation in Custody Disputes – Jim vanEck, PPS; Stephanie H. Stilley, MSW

• Reunification Therapy in the 21st Century – Linda S. Tell, RN, MFT; Stephanie H. Stilley, MSW

• Issues Related to the Use of Psychological Testing in Evidence Code § 730 Custody Evaluations – Sidney K. Nelson, PhD

• Alienation – What Is It Really? And What Can You Do About It? – Nancy Olesen, PhD

LAW PRACTICE/PROCEDURES• Information Is the Key – What a Professional P.I.

Can Do for Your Family Law Case – Thomas R. Wilson, Point West Investigations

• Conflict of Interest with Private Judges – Michelene Insalaco, CFLS; David Fink, CFLS; Garrett Dailey, CFLS

• Dissomaster: Advanced Features and Concepts –Kenny Pierce, MBA, AVA, CFFA

• What Every Family Law Attorney Should Know About Law Office Hiring Procedures – Thomas S. Knox, J.D.; John M. Lemmon, J.D.

• Settlement Practicum: Outside the Box Settlement Tools – Eileen Preville, CFLS

• Divorce-Bankruptcy – Gary Gale, J.D. & Gerald White, J.D.

• Marketing: Why You Shouldn’t Be Afraid of Social Media – Mark Ressa, CFLS

• The Secret Ways of MSA’s – Ronald S. Granberg, CFLS• Social Media: It’s All About ME(e), Marketing

Ethics and Evidence – Mark Ressa, J.D.• Notable Mistakes That Lawyers Make With

Employment Benefits and How to Excel by Avoiding Them – Barbara A. DiFranza, CFLS

• After Elkins: Advanced Courtroom Practice Under A.B. 939 – Hon. Mark A. Juhas; Hon. Thomas Trent Lewis; Hon. Cynda R. Unger; Garrett C. Dailey, CFLS

• Getting the Facts: Comparing Discovery and Disclosure – When to Use Each – Dawn Gray, CFLS; Christopher C. Melcher, CFLS

• Presenting Witnesses Through Declarations and Offers of Proof – Hon. B. Scott Silverman; Commr. John Chemeleski; Frieda Gordon, CFLS

• Social Media and E-Discovery in Family Law Court-rooms (in 2 Parts) – Mark Ressa, J.D.; Christopher C. Melcher, CFLS

• Watching it Happen: Advanced Evidence in the Courtroom (in 2 Parts) – Hon. Thomas Trent Lewis; Ronald S. Granberg, CFLS; Edward J. Thomas, CFLS

ENFORCEMENT• A Systematic Method of Enforcing Fiduciary

Duties: Marriage of Feldman – Dawn Gray, CFLS; Stephen J. Wagner, CFLS

• Contempt of Court – What it Is and How to Use It – Tracy Duell-Cazes, CFLS

• Fiduciary Duties: Theory vs. Reality – Comm. Marjorie Slabach, CFLS (Ret.) and Dawn Gray, CFLS

PRESORTEDFIRST CLASS MAIL

US POSTAGE

PAIDCANOGA PARK, CAPERMIT #300Dee Rolewicz, ACFLS Executive Director

1500 W. El Camino Avenue, Suite 158 Sacramento, CA 95833-1945

Journal

Twenty-second AnnualSpring Seminar

March 21–23, 2014Rancho Las Palmas Resort and Spa – Rancho Mirage, California

Earn 10.5 California MCLE and Board of Legal Specialization Family Law Specialization credits over three half-days.

This seminar is designed for the experienced family law practitioner. There will be plenty of time for activities, family fun, rest, relaxation

and in-person social networking with colleagues from other parts of our State at the luxurious Rancho Las Palmas Resort and Spa in Rancho Mirage.

ACFLS is a State Bar of California approved MCLE provider and a California Board of Legal Specialization approved Family Law provider (Provider #118).

Moderator:Garrett C. Dailey, CFLS

Judicial Responder Panel:Honorable Dianna J. Gould-Saltman, Judge

Honorable Thomas Trent Lewis, Judge Honorable Robert Schnider, Ret.

Honorable Marjorie A. Slabach, Ret.

“Truth or Consequences:The Intricacies of Fiduciary Duties”

Documents

“Hey Joe, Where You Going with that Gun? 1 ”