Family law judges do not simply determine spousal support by reference to one factor or another.  They must weigh and apply all of the factors stated in Family Code § 4320.  Any spousal support order not reflecting a weighing of these statutory factors is subject to reversal for abuse of discretion.

Family Code § 4320(d), which considers: “The needs of each party based on the standard of living established during the marriage,” is probably the most indeterminate statutory factor the family law judges must weigh and apply in each case.

The case of Marriage of Smith (1990) 225 Cal.App.3d 469 supplies the generally accepted guidelines for marital standard of living.  It held the marital standard of living to mean:

“…the general station in life enjoyed by the parties during their marriage.  The Legislature did not intend it to be a precise mathematical calculation, but rather a general reference point for the trial court in deciding this issue.”

There are two general approaches to quantifying the marital standard of living.  They are:

1. Expenditure based, and
2. Income based.

The expenditure based approach considers all spending records (cash and credit) for the last few years of marriage and categorically summarizes the spending.

The income based approach requires relatively few documents and both its strengths and weaknesses are attributable to simplicity.  The income base approach summarizes historical tax returns and assumes that all after-tax dollars are subsequently consumed.  In other words, all available dollars are either spent, saved, or invested.

Based on the case of Marriage of Weinstein (1991) 4 Cal.App.4th 555, this approach is the preferred method when the parties lived beyond their means.  Or, in other words, when the marital standard of living was subsidized by credit.

The two women began living together in a committed relationship in 1994.  They registered as domestic partners in San Francisco that same year.  One of the partners, E.G, who had been trying to become a single parent for many years, learned that she didn’t have sufficient ova to make in vitro fertilization possible.  When E.G.’s doctor suggested that her partner donate her ova, E.G. balked because their relationship was still relatively new.

Later, E.G. asked her partner to donate her ova, but only if the partner would “really be a donor,” meaning that E.G. would be the “mother of any child.”  Her partner agreed, and K.M. signed a consent form supplied by the fertility clinic.

The consent form stated that K.M. would waive any rights and relinquish any claim to the ova or any resulting offspring, which the recipient could regard as her own.  The form also specifically stated that the donor disclaimed and waived any rights in or to any child conceived with her eggs, along with the right to a relationship with, or inheritance from any such child.

Upon making the donation, the resulting embryos were implanted in E.G. in 1995.  E.G. subsequently became pregnant with twins, who were born later that year.  Over the next five years, the women and children lived together as a family.  Both K.M. and E.G. shared parental roles.  When their relationship ended in 2001, K.M. filed a petition to establish a parental relationship with the twins.

Upon hearing the petition, the trial court found K.M. had relinquished any claim to parentage by signing the donor consent form, and that the two women had an oral agreement that E.G. would be the twins’ sole parent.  The court determined K.M. lacked standing to petition for parentage, and her petition was denied.  On appeal, the First District affirmed, reasoning that K.M.’s status was similar to that of a sperm donor.

The California Supreme Court reversed.  The majority held that:

1. Family Code § 7613(b), which states that a donor who provides semen to licensed physician or sperm bank for artificial insemination/in vitro fertilization of woman other than his wife is not treated in law as natural father of resulting child, does not apply where a woman donates ova to her same-sex partner in order to produce a child that will be raised in their joint home; and

2. Both women are to be considered mothers of the twins by reason of K.M.’s donated ova and by reason of E.G having given birth.

The majority justices also concluded that K.M. could not waive her parental rights or her responsibility to support her children by signing the consent form or making an oral agreement.  This ruling is consistent with California family law courts that seek to shape the law around finding parents who are legally responsible for supporting their children, thereby removing this burden from the public.

The biological mother, who goes by the name of Tina, had her egg fertilized with donor sperm that was implanted into her partner’s womb.  But then their romance fell apart when the child was two.  And the Florida courts had to decide who would be the legal parent:  the biological mother or the birth mother who carried the unrelated child for nine months in her womb.

Initially, citing Florida law, the trial court summarily decided with Tina’s ex partner.  But on December 23^rd of last year, a state appeals court rejected the law as antiquated and recognized both women as legal parents.  Citing the case as “unique,” the 5^th District Court of Appeal ruled that both the U.S. and Florida constitutions trumped Florida’s law.

As it stands, the birth mother has asked for a stay of biological mom’s rights, and the case will most assuredly proceed to the Florida Supreme Court, and, quite possibly the U.S. Supreme Court.

The plight of both women and their young daughter highlights the murky laws that surround same-sex families, especially in states, such as Florida, that do not recognize gay marriage.  Although they acted to the world as a committed couple, one thing that might have helped Tina avoid giving rights to the non-biological mother was if she had first gone to a lawyer to get surrogacy paperwork.

In reaching its decision, the appellate court considered this to be a moral, ethical, and legal issue, and it recognized the intent of the parties to deliberately bring a child into the world and to raise her together.  The court ruled that the problem with the Florida law was that it provided no distinction between biological and birth mother and it had not caught up with science or the state of same-sex marriages.

• When a child is 12 or older and seeks medical treatment related to a drug or alcohol problem FC §6929b)

• When a child is 12 or older and seeks medical treatment for rape.  A medical care professional, however, shall attempt to contact the minor’s parents or guardian, unless he or she reasonably believes the minor’s parents or guardian committed the sexual assault on the minor. (FC §§ 6927, 6928)

• When a child is 12 or older and seeks medical treatment related to an infectious, contagious, or sexually transmitted disease. (FC § 6926)

• When a child is seeking medical care related to the care and prevention of pregnancy.  This includes birth control information and devices, and (if the child is deemed sufficiently mature) abortion or any other care, short of sterilization.

Family Code § 6922 makes it easier for youngsters 15 years of age or older to obtain medical care when they show that they are living separate and apart from their parents and managing their own financial affairs.  And of course there’s Family Code § 7002 which dictates that married minors, or minors who have joined the military or have received a formal court decree acknowledging their emancipation, need not confer with their parents regarding any decisions whatsoever.

So if you have questions about your parental or child’s rights, don’t hesitate to contact an experienced family law attorney, one who can help you deal with the law and important decisions involving your family’s well being.

HAPPY NEW YEAR!  Happy 2012!!!

We at the Law Offices of Donna Santo believe that the best changes actually come from within, and not only help the individual move forward in their personal evolution, but as each individual moves higher, we take everyone with us.  So why not make this New Years full of resolutions that make the family, as a unit, stronger, tighter, and more love filled.

1)      Touch with Love – Love is the highest vibration the universe has to offer.  So why not put it into everything we touch.  Our energy and our consciousness, which includes our thoughts, feelings, words, actions, and desires, create the reality that surrounds us.  Fill everything we do with the love that we so desperately seek.  Every time we touch something with our thoughts or words, fill them with the pure vibration of the heart, and see what this brings to us.  Place patience and respect into everything we touch.  See how our family responds, and let’s bring the world a little bit closer through our thoughts and our actions.

2)      Get Back to the Principle of Building Family First – We have all been conditioned to pursue that almighty dollar.  To improve our status in the neighborhood and the community that surrounds us.  But what would happen if we recondition ourselves to making our family our highest priority.  What if we make sure our family needs are met, that our kids leave each day feeling good about themselves and the world they live in.  We don’t need to have a lot of money to do this.  We just need to take the time to help balance each of our family members’ emotional, mental, physical, and spiritual bodies.  It will all come back to us by making our personal existences stronger and more pleasant.

3)      Place the Highest Intent in all We Do – No matter what we do, place the highest intent behind it.  Again, our reality is created through the energy and consciousness we pour into our thoughts, feelings, words and actions.  So make every moment count.  Whether it’s the mundane tasks like driving our kids to school or taking out the trash, why not fill it with our highest vibration.  At that moment, it’s all we have, so why not give it our best shot.  We don’t need to bury it with thoughts of past problems or future concerns.  Why ruin the moment?  Those are just situations of life, that deserve their own time to mend.  When we work on those issues, then we put our best energies into solving those problems at that time, and we make better, higher vibrating results for ourselves and those around us.

4)      Become the Change We Want to see Around us – Mahatma Gandhi once said, “We must become the change we want to see.”  It is true.  We don’t need to tell our spouse or children that they must become this or that.  Because, if we don’t live it, then we become the hypocrite.  Only by becoming that change, will those around us begin to learn and appreciate what we have to say.  It gives us credibility and builds respect from those we want to admire us most.

5)      Pray, Visualize, and Meditate to Perfection ­– Our intent and consciousness creates our reality.  So take the time to pray for perfection in our surroundings.  If we want to see beauty in our lives, we can begin to create it by visualizing what it is that we want to see.  By practicing meditation, we can begin to release all the negative thoughts that inundate us, and fill our consciousness with the Divine intent from the heart processes, rather than the egoic negativity we have been conditioned into.  These practices can create beauty for us as individuals and our family we hold so dear to us.

We wish you and your family a happy and healthy New Year!!!

Now is the time for us to open up our hearts, to give to all others, without expectations.  Because when we give, the universal flow will continue to provide.  It’s just the way it is.  Some call it the Law of Attraction.  Others call it Cause and Effect.  Whatever one wants to call it, it is the Law we all operate under.  And as soon as we all get it, and we all open up, and just give, then the flow of the universe provides for each and every one of us.

Right now, we all can begin by giving, without any expectations.  Just dig into the heart that connects each one of us, especially at this special time of the year, and share that most powerful source of God energy that we all seek.  It’s called Love.  And with it comes no attachments.  By giving it all, all the time, we are guaranteeing that we shall continue to receive all the sustenance the universe provides.

We at the Law Offices of Donna Santo send out to each and every one of you the free flow of health, warmth, love, and sustenance that each one of us so very much deserve.

Many blessings, and Happy Holidays to all!!!

1. Bless The Food We Have Been Given At Every Meal – ­We all know about sitting down to a wonderful holiday meal at Thanksgiving or Christmas time and giving thanks to the creator for bringing us all together for such a special occasion.  But did you know that the divine intent we pour through our hands can bless every meal we create at any time of the day.  So why not bless all meals we create at all times of the day, every day, all the time.  Whether we’re creating snacks for our kids or just sitting down for a one-course meal of macaroni and cheese for one, put our very best, most loving energy into it.  Bless our food with the divine intent that it was originally intended for.  Bless it with the love, sustenance, and healthy energy we need to fulfill our divine purpose at this incredible time on this wonderful planet right now.

2. Never Forget That Now Is All We Ever Have – At all times, no matter who we are with, or where we are, now is all we will ever have.  So relish the opportunity to really show our appreciation to whomever we are with at any given moment.  See if we can’t give our very best 24/7.  Forget about expectations.  When we do our very best, right now, all the time, we will never have to worry about negative repercussions, because we will always bear the positive results from the positive energies we have put forth.

3. Surrender To All That Is – Stop worrying about mistakes from the past.  Just learn to surrender to what is.  Accept the fact that things are the way they are, and move forward with our very best effort.  When we learn to stop fighting the inevitable with negative energies, to stop meeting tit-for-tat, an eye-for-an-eye, a tooth-for-a-tooth, and move forward with love and peace and joy, then we begin to create a new paradigm for our existence.  This especially holds true when it comes to family.

4. Learn to Forgive – There is only one exception to the universal law of cause and effect, and that is forgiveness.  When both sides can forgive, there becomes no need to worry about the effects we might create in the universe.  To forgive allows us to move forward in our lives.  It allows the wrongdoer, who might be a parent or a child, to learn the lessons from their transgressions, so that they may grow from their mistakes.  It eliminates the negative energies that build up from loved ones who feel the need to strike back at those that hurt them the most.  We tend to respond negatively from built in mental-emotional reactionary patterns that can be very difficult to break.  But forgiveness can cut these patterns off, which can allow us to heal as individuals and family members.

5. Love Unconditionally At All Times – This is the season to love unconditionally at all times.  It’s really easy to do.  When we learn to love unconditionally our family, friends, and people we don’t even know, with the most powerful energy in the universe, we will want to access it more.  We will love the way it makes us feel.  We will learn how to utilize this energy to heal not only ourselves, but our families and the entire planet.  And when we do this, anything becomes possible.

Nothingness can be one of the most powerful states of achievement that one can ever experience, if one can ever calm themselves down enough to experience it.  It is often achieved after immense suffering, after tremendous pain, whether physical in nature, or after witnessing others close to us go through the excruciating difficulties that life has to offer.

These are very difficult times right now, emotionally, spiritually, and financially.  And things promise to get more difficult before they get better.  But there has been no greater time in our entire existence to appreciate all that we do have.  We don’t need television to do this.  We don’t need iPhones, iPads, computers, toys, fast cars, crowds of friends, alcohol or drugs to help us achieve peace, love and joy.  All we need is ourselves.

We can achieve this peace of mind, this serenity of being with family of blood or friends.  We can do this alone or hand-in-hand with those we love the most.  We can close our eyes to the troubles that might exist out there.  We can turn inside, and feel the rhythm of our true existence, of the peace and harmony of love and life, of the interconnectedness of all that is.

Of the heart space that connects all living things, that connects man to woman and child, to each other, to family, to race, to nation, from here to every corner of this incredible planet, and realize that there is so much that is greater than all the garbage that appears in advertisements and on television and on those handheld gadgets everyone seems to feel the need to fidget with at bus stops and on Stairmasters at the gym.

Now is the time to appreciate all that you have.  It is right here, right now.  Inside of you.  In the hands of those you love the most.  In the hearts of all those that surround you.  In the hearts of your children, your parents, brothers, and sisters, and all living things.  Appreciate every second you have, because that is really all you will ever have, at any time.

And that really is what family is all about.

• where the child will live
• what school they will attend
• when medical care is appropriate, and
• what religion they will practice.

These are constitutionally protected rights and they generally cannot be taken away from the parents unless it can be proven that they are unfit.

Another parental right is to a child’s income.  Most parents allow their children to keep his or her earnings.  However, according to California Family Code § 7500 parents also have the right to such wages.  But there are exceptions to this rule.  For instance, a child’s income may not be available to parents if:

• The parents have exploited, neglected or abandoned the child, and the child has brought suit to be freed from parental control.
• The child’s income is the result of his or her special talent or athletic ability (a child star or athlete).
• The child’s income is the result of a gift or inheritance.

A parent’s most important responsibility is to support their child.  They are legally obligated to provide their children with the necessities of life.  Such necessities include:

• food
• clothing
• shelter, and
• medical care.

According to Family Code § 4053 parents are also required to support their kids according to their ability and situation in life (i.e. their standard of living).  This responsibility falls squarely on the shoulders of both parents and applies to the children’s adoptive parents as well.

Even if a child’s parents are not married they are still responsible to support their children.  If parents are unmarried or divorced, and they cannot agree on how much each should contribute toward the support of their children, the courts may be called upon to decide.  One parent, or the child through a guardian ad litem, may bring an action against the other parent to enforce the duty to pay child support.

In the alternative, the county in which the child resides may proceed on behalf of the child to enforce the child’s right of support against a parent who fails to provide it.  A judge may order one parent to make specified payments to the other or child support.  The court’s authority to order a parent to pay child support or to enforce such an award includes any of the following tools:

1. a writ of execution
2. a wage garnishment
3. civil contempt proceedings, or
4. criminal prosecution.

All of these provide good reason to have an experienced attorney to handle the matter in family court on behalf of a child in need.