Law:Division 1. Preliminary Provisions And Definitions (California)
From Law Delta
Part 1. Preliminary Provisions
Ca Codes (fam:1-13) Family.code Section 1-13
1. This code shall be known as the Family Code.
2. A provision of this code, insofar as it is substantially the same as a previously existing provision relating to the same subject matter, shall be considered as a restatement and continuation thereof and not as a new enactment, and a reference in a statute to the provision of this code shall be deemed to include a reference to the previously existing provision unless a contrary intent appears.
3. A provision of this code, insofar as it is the same in substance as a provision of a uniform act, shall be construed to effectuate the general purpose to make uniform the law in those states which enact that provision.
4. (a) As used in this section: (1) "New law" means either of the following, as the case may be: (A) The act that enacted this code. (B) The act that makes a change in this code, whether effectuated by amendment, addition, or repeal of a provision of this code. (2) "Old law" means the applicable law in effect before the operative date of the new law. (3) "Operative date" means the operative date of the new law. (b) This section governs the application of the new law except to the extent otherwise expressly provided in the new law. (c) Subject to the limitations provided in this section, the new law applies on the operative date to all matters governed by the new law, regardless of whether an event occurred or circumstance existed before, on, or after the operative date, including, but not limited to, commencement of a proceeding, making of an order, or taking of an action. (d) If a document or paper is filed before the operative date, the contents, execution, and notice thereof are governed by the old law and not by the new law; but subsequent proceedings taken after the operative date concerning the document or paper, including an objection or response, a hearing, an order, or other matter relating thereto is governed by the new law and not by the old law. (e) If an order is made before the operative date, or an action on an order is taken before the operative date, the validity of the order or action is governed by the old law and not by the new law. Nothing in this subdivision precludes proceedings after the operative date to modify an order made, or alter a course of action commenced, before the operative date to the extent proceedings for modification of an order or alteration of a course of action of that type are otherwise provided in the new law. (f) No person is liable for an action taken before the operative date that was proper at the time the action was taken, even though the action would be improper if taken on or after the operative date, and the person has no duty, as a result of the enactment of the new law, to take any step to alter the course of action or its consequences. (g) If the new law does not apply to a matter that occurred before the operative date, the old law continues to govern the matter notwithstanding its repeal or amendment by the new law. (h) If a party shows, and the court determines, that application of a particular provision of the new law or of the old law in the manner required by this section or by the new law would substantially interfere with the effective conduct of the proceedings or the rights of the parties or other interested persons in connection with an event that occurred or circumstance that existed before the operative date, the court may, notwithstanding this section or the new law, apply either the new law or the old law to the extent reasonably necessary to mitigate the substantial interference.
5. Division, part, chapter, article, and section headings do not in any manner affect the scope, meaning, or intent of this code.
6. Unless the provision or context otherwise requires, the general provisions and rules of construction in this part govern the construction of this code.
7. Whenever a reference is made to a portion of this code or to another law, the reference applies to all amendments and additions regardless of when made.
8. Unless otherwise expressly stated: (a) "Division" means a division of this code. (b) "Part" means a part of the division in which that term occurs. (c) "Chapter" means a chapter of the division or part, as the case may be, in which that term occurs. (d) "Article" means an article of the chapter in which that term occurs. (e) "Section" means a section of this code. (f) "Subdivision" means a subdivision of the section in which that term occurs. (g) "Paragraph" means a paragraph of the subdivision in which that term occurs. (h) "Subparagraph" means a subparagraph of the paragraph in which that term occurs.
9. The present tense includes the past and future tenses, and the future, the present.
10. The singular number includes the plural, and the plural, the singular.
11. A reference to "husband" and "wife," "spouses," or "married persons," or a comparable term, includes persons who are lawfully married to each other and persons who were previously lawfully married to each other, as is appropriate under the circumstances of the particular case.
12. "Shall" is mandatory and "may" is permissive. "Shall not" and "may not" are prohibitory.
13. If a provision or clause of this code or its application to any person or circumstances is held invalid, the invalidity does not affect other provisions or applications of the code which can be given effect without the invalid provision or application, and to this end the provisions of this code are severable.
Part 2. Definitions
Ca Codes (fam:50-155) Family.code Section 50-155
50. Unless the provision or context otherwise requires, the definitions and rules of construction in this part govern the construction of this code.
58. "Child for whom support may be ordered" means a minor child and a child for whom support is authorized under Section 3587, 3901, or 3910.
63. "Community estate" includes both community property and quasi-community property.
65. "Community property" is property that is community property under Part 2 (commencing with Section 760) of Division 4.
67. "County" includes city and county.
80. "Employee benefit plan" includes public and private retirement, pension, annuity, savings, profit sharing, stock bonus, stock option, thrift, vacation pay, and similar plans of deferred or fringe benefit compensation, whether of the defined contribution or defined benefit type whether or not such plan is qualified under the Employee Retirement Income Security Act of 1974 (P.L. 93-406) (ERISA), as amended. The term also includes "employee benefit plan" as defined in Section 3 of ERISA (29 U.S.C.A. Sec. 1002(3)).
92. "Family support" means an agreement between the parents, or an order or judgment, that combines child support and spousal support without designating the amount to be paid for child support and the amount to be paid for spousal support.
95. "Income and expense declaration" means the form for an income and expense declaration in family law matters adopted by the Judicial Council.
100. "Judgment" and "order" include a decree, as appropriate under the circumstances.
105. "Person" includes a natural person, firm, association, organization, partnership, business trust, corporation, limited liability company, or public entity.
110. "Proceeding" includes an action.
113. "Property" includes real and personal property and any interest therein.
115. "Property declaration" means the form for a property declaration in family law matters adopted by the Judicial Council.
125. "Quasi-community property" means all real or personal property, wherever situated, acquired before or after the operative date of this code in any of the following ways: (a) By either spouse while domiciled elsewhere which would have been community property if the spouse who acquired the property had been domiciled in this state at the time of its acquisition. (b) In exchange for real or personal property, wherever situated, which would have been community property if the spouse who acquired the property so exchanged had been domiciled in this state at the time of its acquisition.
126. "Petitioner" includes plaintiff, where appropriate.
127. "Respondent" includes defendant, where appropriate.
130. "Separate property" is property that is separate property under Part 2 (commencing with Section 760) of Division 4.
142. "Spousal support" means support of the spouse of the obligor.
145. "State" means a state of the United States, the District of Columbia, or a commonwealth, territory, or insular possession subject to the jurisdiction of the United States.
150. "Support" refers to a support obligation owing on behalf of a child, spouse, or family, or an amount owing pursuant to Section 17402. It also includes past due support or arrearage when it exists. "Support," when used with reference to a minor child or a child described in Section 3901, includes maintenance and education.
155. "Support order" means a judgment or order of support in favor of an obligee, whether temporary or final, or subject to modification, termination, or remission, regardless of the kind of action or proceeding in which it is entered. For the purposes of Section 685.020 of the Code of Civil Procedure, only the initial support order, whether temporary or final, whether or not the order is contained in a judgment, shall be considered an installment judgment. No support order or other order or notice issued, which sets forth the amount of support owed for prior periods of time or establishes a periodic payment to liquidate the support owed for prior periods, shall be considered a money judgment for purposes of subdivision (b) of Section 685.020 of the Code of Civil Procedure.
Part 3. Indian Children
Ca Codes (fam:170-185) Family.code Section 170-185
170. (a) As used in this code, unless the context otherwise requires, the terms "Indian," "Indian child," "Indian child's tribe," "Indian custodian," "Indian organization," "Indian tribe," "reservation," and "tribal court" shall be defined as provided in Section 1903 of the Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.). (b) When used in connection with an Indian child custody proceeding, the terms "extended family member" and "parent" shall be defined as provided in Section 1903 of the Indian Child Welfare Act. (c) "Indian child custody proceeding" means a "child custody proceeding" within the meaning of Section 1903 of the Indian Child Welfare Act, including a voluntary or involuntary proceeding that may result in an Indian child's temporary or long-term foster care or guardianship placement if the parent or Indian custodian cannot have the child returned upon demand, termination of parental rights, or adoptive placement. An "Indian child custody proceeding" does not include a proceeding under this code commenced by the parent of an Indian child to determine the custodial rights of the child's parents, unless the proceeding involves a petition to declare an Indian child free from the custody or control of a parent or involves a grant of custody to a person or persons other than a parent, over the objection of a parent. (d) If an Indian child is a member of more than one tribe or is eligible for membership in more than one tribe, the court shall make a determination, in writing together with the reasons for it, as to which tribe is the Indian child's tribe for purposes of the Indian child custody proceeding. The court shall make that determination as follows: (1) If the Indian child is or becomes a member of only one tribe, that tribe shall be designated as the Indian child's tribe, even though the child is eligible for membership in another tribe. (2) If an Indian child is or becomes a member of more than one tribe, or is not a member of any tribe but is eligible for membership in more than one tribe, the tribe with which the child has the more significant contacts shall be designated as the Indian child's tribe. In determining which tribe the child has the more significant contacts with, the court shall consider, among other things, the following factors: (A) The length of residence on or near the reservation of each tribe and frequency of contact with each tribe. (B) The child's participation in activities of each tribe. (C) The child's fluency in the language of each tribe. (D) Whether there has been a previous adjudication with respect to the child by a court of one of the tribes. (E) Residence on or near one of the tribes' reservations by the child's parents, Indian custodian or extended family members. (F) Tribal membership of custodial parent or Indian custodian. (G) Interest asserted by each tribe in response to the notice specified in Section 180. (H) The child's self identification. (3) If an Indian child becomes a member of a tribe other than the one designated by the court as the Indian child's tribe under paragraph (2), actions taken based on the court's determination prior to the child's becoming a tribal member shall continue to be valid.
175. (a) The Legislature finds and declares the following: (1) There is no resource that is more vital to the continued existence and integrity of recognized Indian tribes than their children, and the State of California has an interest in protecting Indian children who are members of, or are eligible for membership in, an Indian tribe. The state is committed to protecting the essential tribal relations and best interest of an Indian child by promoting practices, in accordance with the Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.) and other applicable law, designed to prevent the child's involuntary out-of-home placement and, whenever the placement is necessary or ordered, by placing the child, whenever possible, in a placement that reflects the unique values of the child's tribal culture and is best able to assist the child in establishing, developing, and maintaining a political, cultural, and social relationship with the child's tribe and tribal community. (2) It is in the interest of an Indian child that the child's membership in the child's Indian tribe and connection to the tribal community be encouraged and protected, regardless of any of the following: (A) Whether the child is in the physical custody of an Indian parent or Indian custodian at the commencement of a child custody proceeding. (B) Whether the parental rights of the child's parents have been terminated. (C) Where the child has resided or been domiciled. (b) In all Indian child custody proceedings the court shall consider all of the findings contained in subdivision (a), strive to promote the stability and security of Indian tribes and families, comply with the federal Indian Child Welfare Act, and seek to protect the best interest of the child. Whenever an Indian child is removed from a foster care home or institution, guardianship, or adoptive placement for the purpose of further foster care, guardianship, or adoptive placement, placement of the child shall be in accordance with the Indian Child Welfare Act. (c) A determination by an Indian tribe that an unmarried person, who is under the age of 18 years, is either (1) a member of an Indian tribe or (2) eligible for membership in an Indian tribe and a biological child of a member of an Indian tribe shall constitute a significant political affiliation with the tribe and shall require the application of the federal Indian Child Welfare Act to the proceedings. (d) In any case in which this code or other applicable state or federal law provides a higher standard of protection to the rights of the parent or Indian custodian of an Indian child, or the Indian child's tribe, than the rights provided under the Indian Child Welfare Act, the court shall apply the higher standard. (e) Any Indian child, the Indian child's tribe, or the parent or Indian custodian from whose custody the child has been removed, may petition the court to invalidate an action in an Indian child custody proceeding for foster care, guardianship placement, or termination of parental rights if the action violated Sections 1911, 1912, and 1913 of the Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.). Nothing in this section is intended to prohibit, restrict, or otherwise limit any rights under Section 1914 of the Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.).
177. (a) In an Indian child custody proceeding, the court shall apply Sections 224.2 to 224.6, inclusive, and Sections 305.5, 361.31, and 361.7 of the Welfare and Institutions Code, and the following rules from the California Rules of Court, as they read on January 1, 2007: (1) Paragraph (7) of subdivision (b) of Rule 5.530. (2) Subdivision (i) of Rule 5.534. (b) In the provisions cited in subdivision (a), references to social workers, probation officers, county welfare department, or probation department shall be construed as meaning the party seeking a foster care placement, guardianship, or adoption under this code. (c) This section shall only apply to proceedings involving an Indian child.
180. (a) In an Indian child custody proceeding notice shall comply with subdivision (b) of this section. (b) Any notice sent under this section shall be sent to the minor' s parent or legal guardian, Indian custodian, if any, and the Indian child's tribe and shall comply with all of the following requirements: (1) Notice shall be sent by registered or certified mail with return receipt requested. Additional notice by first-class mail is recommended, but not required. (2) Notice to the tribe shall be to the tribal chairperson, unless the tribe has designated another agent for service. (3) Notice shall be sent to all tribes of which the child may be a member or eligible for membership until the court makes a determination as to which tribe is the Indian child's tribe in accordance with subdivision (d) of Section 170, after which notice need only be sent to the tribe determined to be the Indian child's tribe. (4) Notice, to the extent required by federal law, shall be sent to the Secretary of the Interior's designated agent, the Sacramento Area Director, Bureau of Indian Affairs. If the identity or location of the Indian child's tribe is known, a copy of the notice shall also be sent directly to the Secretary of the Interior unless the Secretary of the Interior has waived that notice in writing and the person responsible for giving notice under this section has filed proof of the waiver with the court. (5) In addition to the information specified in other sections of this article, notice shall include all of the following information: (A) The name, birthdate, and birthplace of the Indian child, if known. (B) The name of any Indian tribe in which the child is a member or may be eligible for membership, if known. (C) All names known of the Indian child's biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married, and former names or aliases, as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known. (D) A copy of the petition by which the proceeding was initiated. (E) A copy of the child's birth certificate, if available. (F) The location, mailing address, and telephone number of the court and all parties notified pursuant to this section. (G) A statement of the following: (i) The absolute right of the child's parents, Indian custodians, and tribe to intervene in the proceeding. (ii) The right of the child's parents, Indian custodians, and tribe to petition the court to transfer the proceeding to the tribal court of the Indian child's tribe, absent objection by either parent and subject to declination by the tribal court. (iii) The right of the child's parents, Indian custodians, and tribe to, upon request, be granted up to an additional 20 days from the receipt of the notice to prepare for the proceeding. (iv) The potential legal consequences of the proceedings on the future custodial rights of the child's parents or Indian custodians. (v) That if the parents or Indian custodians are unable to afford counsel, counsel will be appointed to represent the parents or Indian custodians pursuant to Section 1912 of the Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.). (vi) That the information contained in the notice, petition, pleading, and other court documents is confidential, so any person or entity notified shall maintain the confidentiality of the information contained in the notice concerning the particular proceeding and not reveal it to anyone who does not need the information in order to exercise the tribe's rights under the Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.). (c) Notice shall be sent whenever it is known or there is reason to know that an Indian child is involved, and for every hearing thereafter, including, but not limited to, the hearing at which a final adoption order is to be granted. After a tribe acknowledges that the child is a member or eligible for membership in that tribe, or after the Indian child's tribe intervenes in a proceeding, the information set out in subparagraphs (C), (D), (E), and (G) of paragraph (5) of subdivision (b) need not be included with the notice. (d) Proof of the notice, including copies of notices sent and all return receipts and responses received, shall be filed with the court in advance of the hearing except as permitted under subdivision (e). (e) No proceeding shall be held until at least 10 days after receipt of notice by the parent, Indian custodian, the tribe, or the Bureau of Indian Affairs. The parent, Indian custodian, or the tribe shall, upon request, be granted up to 20 additional days to prepare for the proceeding. Nothing herein shall be construed as limiting the rights of the parent, Indian custodian, or tribe to 10 days' notice if a lengthier notice period is required under this code. (f) With respect to giving notice to Indian tribes, a party shall be subject to court sanctions if that person knowingly and willfully falsifies or conceals a material fact concerning whether the child is an Indian child, or counsels a party to do so. (g) The inclusion of contact information of any adult or child that would otherwise be required to be included in the notification pursuant to this section, shall not be required if that person is at risk of harm as a result of domestic violence, child abuse, sexual abuse, or stalking.
185. (a) In a custody proceeding involving a child who would otherwise be an Indian child based on the definition contained in paragraph (4) of Section 1903 of the federal Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.), but is not an Indian child based on status of the child's tribe, as defined in paragraph (8) of Section 1903 of the federal Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.), the court may permit the tribe from which the child is descended to participate in the proceeding upon request of the tribe. (b) If the court permits a tribe to participate in a proceeding, the tribe may do all of the following, upon consent of the court: (1) Be present at the hearing. (2) Address the court. (3) Request and receive notice of hearings. (4) Request to examine court documents relating to the proceeding. (5) Present information to the court that is relevant to the proceeding. (6) Submit written reports and recommendations to the court. (7) Perform other duties and responsibilities as requested or approved by the court. (c) If more than one tribe requests to participate in a proceeding under subdivision (a), the court may limit participation to the tribe with which the child has the most significant contacts, as determined in accordance with paragraph (2) of subdivision (d) of Section 170. (d) This section is intended to assist the court in making decisions that are in the best interest of the child by permitting a tribe in the circumstances set out in subdivision (a) to inform the court and parties to the proceeding about placement options for the child within the child's extended family or the tribal community, services and programs available to the child and the child's parents as Indians, and other unique interests the child or the child's parents may have as Indians. This section shall not be construed to make the Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.), or any state law implementing the Indian Child Welfare Act, applicable to the proceedings, or to limit the court's discretion to permit other interested persons to participate in these or any other proceedings. (e) This section shall only apply to proceedings involving an Indian child.