8. Divorce Motions – What are typical motions and when are they filed?

California courts used to have motions and orders to show cause filed at any time during the pendency of a case in order to seek temporary relief in the form of child support, spousal support, property control, custody and visitation, attorney fees, and a variety of other matters. The filing fee for a motion was less than an order to show cause, yet they could be utilized to accomplish the same goals. As a result, in 2008 the legislature changed the practice of motions and orders to show cause to have one uniform Request for Order (“RFO”) which can be filed in dissolution, domestic partnership, nullity, paternity, and legal separation cases (Cal. Fam. Code § 6226).

A RFO can be filed either at the inception of the case along with the petition or at any time during the pending case. More than one RFO can filed during the pendency of a case and after the divorce is final should there be a significant change of circumstances from a prior ruling of the court (Cal. Fam. Code § 215). The Judicial Council has developed a form (Judicial Council Form FL-300) that must be utilized for all RFO’s unless there is a specific form developed for a particular type of matter (namely, contempt, domestic violence restraining orders, and local support agency matters; Cal. Rules of Court, Rule 5.92).

Perhaps the most common RFO is for custody of children because along with custody comes the right to receive child support. The court starts with the idea that the court should consider the best interests of the child (Cal. Fam. Code § 3011). There is a presumption that there should be joint legal and physical custody (Cal. Fam. Code § 3080). Joint legal custody means that both parents share in making decisions regarding a child’s health, education, and welfare (Cal. Fam. Code § 3003). Joint physical custody means that both parents have significant time spent with the child to ensure frequent and ongoing contact with the child (Cal. Fam. Code § 3004). Sole legal and physical custody have the same meaning except that one parent is making all the decisions and the noncustodial parent would have some limited visitation. There are a variety of factors that are considered in deciding custody, and this background is provided for the purpose of understanding how a typical temporary child custody and support motion would proceed.

California has a requirement of mandatory mediation in child custody cases in counties where such mediation services are available (Cal. Rule of Court, Rule 5.210). San Diego Superior Courts require mandatory mediation in child custody matters. When a matter is initially filed, if custody is in dispute, a mediator will be assigned even without a RFO being filed (Cal. Fam. Code § 3170). The mediator will only discuss custody of minor children and a parenting schedule that fits the needs of the child and will not attempt to settle any other issues. There are other forms of dispute resolution if the parties think that a third party will be helpful is resolving other issues.

For example, Petra and Ron are married and have two minor children ages 10 and 14. Petra files a petition for divorce, but wants to work out a parenting plan and indicates that she wants joint legal and physical custody. Ron files a response and states that he also wants joint legal and physical custody. A mediator is not assigned by the court as it appears on the face of the documents that custody is not an issue. Just after filing the petition, Petra moves out of the marital home into a two bedroom apartment about two miles from the marital home. Petra and Ron continue to share the children with Petra taking them to school in the morning and Ron picking them after school and taking them to the marital home where Ron’s mother watches them until Ron finishes his regular work schedule from 8 a.m. to 5 p.m. Ron takes the children to Petra at about 7:30 p.m. each evening and the children spend weeknights at Petra’s apartment and most weekends with Ron. This continues for several months until Ron learns that Petra has been drinking and using drugs. Ron also learns that the children have been late to school at least once a week. Ron also learns that Petra got a DUI, was demoted for poor conduct at work, and has strangers over at the house when the children wake up for school.

Ron asks Petra about her conduct, but she denies everything. Ron decides to file an RFO asking for joint legal custody, but sole physical custody to Ron with reasonable rights to visitation to Petra on weekends with no overnights for the children and Petra. The court assigns a mediator who meets with both parties. In San Diego County, one can wait several months before a mediation session will occur. During that time, Ron gets a copy of the school records showing the children’s tardiness, issues a subpoena to Petra’s work regarding her poor conduct at work, and gets a copy of a DUI charge which is a public record with the court. Ron also has a friend sit in front of Petra’s apartment who takes photos of Petra entering her apartment with various men whom are unfamiliar and unrelated to the children.

When the parties arrive at mediation, Petra denies all of Ron’s allegations and wants to keep the custodial arrangement the same. Petra alleges that all Ron wants is to avoid paying child support. Ron presents the mediator with the school records, employment documents demoting Petra due to being late to work, a copy of the DUI charges, and photos of Petra coming to her apartment at night with men while the children were there. The mediator also meets with the parties’ 14-year-old son privately, which is permitted for a child of sufficient maturity (Cal. Fam. Code § 3042). The mediator writes a report recommending joint legal custody, but sole physical custody to Ron with weekend daytime visitation to Petra (Cal. Fam. Code § 3085). The mediator cites all the evidence presented by Ron and the fact that the older minor child expressed a strong preference to live with Ron. When the court date arrives, Petra argues that Ron has manufactured allegations because he wants to avoid paying child support. Ron correctly points out that the opposite would be true, that Petra wants custody so Ron pays child support. Ron is correct, the court will not consider who may pay child support in determining custody. There is little Petra can do to fight the facts presented by Ron to the mediator, and the judge, as is usually the case, adopts the mediator’s report and makes the recommendation a temporary court order citing the safety and welfare of the children (Cal. Fam. Code § 3011(a)), Petra’s dating relationships (Cal. Fam. Code § 3011(b)(3), Petra’s alcohol and drug use (Cal. Fam. Code § 3011(d), and the preference of the 14-year-old child (Cal. Fam. Code § 3042).

Having decided temporary custody, the court can now make child support orders because aside from income, the biggest variable in determining child support is the time share of the parties. Each party is required to submit and Income and Expense Declaration (Judicial Council Form FL-150) that is utilized to calculate temporary child support. Child support is calculated pursuant to Statewide Uniform Guidelines (Cal. Fam. Code §§ 4050-4078). There is an algebraic formula (Cal. Fam. Code § 4055) that is translated through various computer software programs including Dissomaster (a paid software service). There is also a free child support calculator on the California Department of Child Support Services website at http://www.childsup.ca.gov/ (click on “Calculate Child Support” in the lower left corner and follow the prompts.

In the above example, Ron could very well file another RFO asking temporary spousal support (Cal. Fam. Code §§ 3600 & 4300 et seq.) and for Petra to pay Ron’s attorney fees (Cal. Fam. Code § 2030).

When a temporary order is made upon a RFO, there is no prejudice to the party against whom the temporary order was made to present evidence at trial that would change the temporary order. The RFO’s are made based upon a need of one or both of the parties pending the exchange of documents and information (categorized as discovery discussed below) and the trial on any issues the parties cannot workout. It is important to analyze all the issues in a given family law matter to determine what RFO’s will serve a party and what orders a judge is likely to make in a given RFO.

For instance, in the above hypothetical, if Ron asked for spousal support, but earned more money than Petra, Ron would have effectively asked the court to pay Petra. Why would one want to ask to pay someone money? It is very important to have a knowledgeable attorney analyze what RFO’s would be appropriate in any family law controversy.