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California Reproductive Law Frequently Asked Questions

Q: Is surrogacy legal in California

A: Yes.  There are two different kinds of surrogacy: “traditional” surrogacy and “gestational” surrogacy. With traditional surrogacy, the woman carrying the child is also the genetic mother – as a general rule, she conceives through artificial insemination with the intended father’s sperm, but using her own egg.  The law on traditional surrogacy in California remains unclear, and it is possible that the “traditional surrogate” will be the legal mother and that one or both of the intended parents will end up having to adopt the child.

With gestational surrogacy, the woman carrying the child is not genetically related to the child – an embryo is created in vitro, using either an intended mother’s eggs or the eggs of an egg donor, fertilized with the sperm of an intended father or a sperm donor, and then the embryo is transferred into the uterus of an unrelated carrier.

As of January 1, 2013, California law is completely clear that gestational surrogacy is legal as long as appropriate rules are followed.

Q: Is surrogacy legal for single people and for gay couples, or only for heterosexual married couples?

A:  In California, surrogacy is legal for singles, unmarried gay couples, unmarred straight couples, and married couples. 

Q: What role does a lawyer play in that process?

A: An attorney fundamentally has two separate roles in the surrogacy process:  (1) the attorney will prepare a written contract for you and your surrogate; and (2) the attorney will bring the legal action to make you the child’s parents.  In addition, an attorney who is experienced in assisted reproduction law can help you make sure that you and your surrogate are a good match, can help you figure out insurance for the surrogate and the baby, and can help you troubleshoot any issues that might come up between you and your surrogate during the pregnancy.

Q: If we use a surrogate to carry our child, at what point are we recognized as legal parents?

A: As long as you have followed proper procedures, and assuming your child was conceived in California, you will be able to get a judgment making you legal parents prior to your child’s birth.  Courts often take a month or more to process these actions.  Generally speaking, if the legal work is done correctly, most California courts are granting pre-birth surrogacy judgments on the papers, with no actual court appearance required.  Your attorneys will draw up all the papers for you, making it a pretty stress-free process for surrogate and intended parents.

It is important to note that a court judgment does not technically go into effect until a baby is born, to avoid a legal conflict over medical decision-making prior to birth.

Q: Since different counties have different procedures for getting pre-birth orders, can I (or my lawyer) choose the county with the best procedures and file our pre-birth action there?

A: A court action to determine parentage of a child born through gestational surrogacy can be brought in the county where the intended parents live, the county where the child was conceived, the county where the surrogate lives, or the county where the child is born.  This usually gives the parties at least a couple of choices of appropriate venues for their court action. 

Q: What happens if we use an out-of-state surrogate?

A: If your child is conceived in the state of California, California courts retain jurisdiction to determine parentage.  Therefore, if you are using an out-of-state surrogate but want California law to apply, you need to make sure that your child is conceived here.  
Family Law Frequently Asked Questions

Q: What is the legal divorce process like?

A: Although some divorces are very simple and can be handled with a minimum amount of red tape and delay (such as when there is no significant property involved and the couple has no children), most divorces are far more difficult and can take many different courses. The following is a basic outline of the divorce process.
• One spouse files a Petition, the legal document that sets forth the reasons why the divorce should be granted and outlines the relief sought.
• The Petition is filed with the court and served on the other spouse, together with a summons that requires that spouse's response.
• The served spouse must respond within the time limit prescribed or it will be assumed that he or she does not contest the Petition, in which case the petitioner will be granted the requested relief. The response, or answer, must set forth the relief that the answering spouse requests.
• The parties engage in "disclosure" and "discovery," during which they exchange all documents and other information relevant to deciding the issues in the divorce such as property division, spousal support, child support, etc.
• The parties may attempt to reach a settlement based on the full disclosure to each other of all relevant information. The settlement process can be initiated voluntarily or facilitated by the parties' lawyers or a neutral third party, such as a mediator.
• If a settlement is reached, the agreement encompassing the terms of the settlement is submitted to the court.
• If the judge approves the agreement, he or she issues a Judgment of divorce that includes the terms to which the parties agreed. If he or she does not approve it, or if there has been no agreement, the case will go to trial.
• At trial, each party presents his/her evidence and arguments and the judge decides the unresolved issues, including child custody and visitation, child and spousal support, and property division, and grants the divorce.
• Either or both parties can appeal the judge's decision to a higher court.
The entire process can take from as little as a few months to as long as several years. The main determinant of how smoothly the process will go is the level of cooperation between the parties and their willingness to compromise.

Q: What kinds of assets are divided in a divorce?

A: The parties in a divorce can agree to the division of (or the judge will divide) all marital or community property owned by the parties. Generally speaking, this includes most of the property the couple acquired during the marriage, including the marital home; a second or vacation home; home furnishings and appliances; artwork; vehicles, including cars, boats, airplanes, snowmobiles, and motorcycles; money; stocks, bonds, and other investments; pensions; and privately owned businesses.
The value of other, more intangible property is also often divided. Examples of divisible intangible property include the value of a patent on an invention, the value of the celebrity status of a spouse's name, the goodwill value of a business owned by one spouse, and the value of a professional degree earned by one spouse. The value of these intangible assets will generally only be divided when both spouses made a substantial contribution to that value, either directly or indirectly, such as by supporting the spouse to whom the asset is more directly attributable.
It is not always easy for a spouse to identify all of the assets that may be available for valuation and division, especially if the other spouse is less than forthcoming with the details. This is where lawyers can help. Through the legal process known as discovery, the attorneys request and exchange documents that reveal each party's income, assets, and liabilities. Documents such as tax returns, personal financial statements, bank account statements, brokerage house records, real estate records, loan applications, and business records usually give a clear indication of each party's financial situation. In addition, each spouse is sometimes deposed by the other spouse's attorney. At the deposition, the questioned spouse will respond, under oath, to questions designed to gather all necessary information about his or her assets and income.
If necessary, additional parties may be deposed, such as employers, bankers, or business partners. If these additional witnesses do not come forth willingly, their presence can be compelled through the issuance of a subpoena, which is an official legal document that commands their participation.

Q: How does a court decide which parent will get custody of a child?

A: When the parents cannot agree on a custody arrangement, the court will make the decision for them after considering the totality of the circumstances, with the overriding consideration being the child's best interests. To make that determination, the court considers:
• The child's age;
• The child's gender;
• The child's physical and mental health;
• The parents' physical and mental health;
• The parents' lifestyles;
• Any history of abuse;
• The emotional bonds between the parent and the child;
• The parent's ability to give the child guidance;
• The parent's ability to provide the basic necessities, such as food, shelter, clothing, and medical care;
• The child's routines, including home, school, community, and religious;
• The willingness of the parent to encourage a healthy, on-going relationship between the child and the other parent; and
• If the child is above a certain age, the child's preference.
In many cases, a consideration of these factors results in awarding custody to the parent who has been the child's primary caretaker. Although this is often the child's mother, any preference for the mother strictly on a gender basis is outmoded.

Q: What are parents' obligations to their children?

A: Every parent has the duty to provide his or her children with the basic necessities of life, including food, clothing, and shelter. This duty usually terminates when the child is emancipated, which generally occurs at the age of eighteen, when the child graduates from high school, when the child enters the military, or when the child marries, but the support obligation can extend beyond that point if the child is unable to support himself or herself and would become a public obligation without familial support. The law generally does not dictate the level of support that is provided when the children live with both parents, but when, through divorce or other circumstances, the child is living with one parent, there are strict rules about the amount of financial support provided by the non-custodial parent.
In most instances, parents also have the responsibility to provide necessary medical care for their children. If parents refuse life-saving medical treatment for their children, the state may intervene against the parents' wishes, even if they made their decision on religious grounds.
Parents must also make sure that their children meet school attendance requirements. They do, however, have the right to decide whether the child's education will be in a public school, a private school, or through home schooling.

Q: How is the amount of child support calculated?

A: Each state has developed guidelines that help establish the amount of child support that must be paid. The guidelines vary significantly from state to state, but they are all generally based on the parents' incomes, certain types of expenses, and the needs of the children. In some states, the guidelines allow judges greater discretion in determining the amount of child support that must be paid, but in other states, such as California, any variance from the guidelines must be carefully justified or it can be readily overturned on appeal. Often, the guidelines are set out in a chart-type format that calculates the child support amount as a percentage of the paying parent's income that increases as the number of children being supported rises. It is important to remember, however, that the guidelines are just that - guidelines - and they are not fixed amounts that must be applied under any and all circumstances. Judges are free to deviate from the guidelines when there are good reasons to do so. If, for instance, one party or a child has higher than average expenses, the amount can vary. Or if the court determines that the paying parent is voluntarily earning less than he or she could for the purpose of minimizing the child support obligation, the judge can calculate the amount of child support based on what the payer is capable of earning.
Despite the variations from state to state, there are some general factors that are almost universally considered by judges issuing child support orders, including
• The child's standard of living before the parents' separation or divorce;
• The paying parent's ability to pay;
• The custodial parent's needs and income; and
• The needs of the child or children, including educational costs, daycare expenses, and medical expenses, such as for health insurance or special health care needs.
Judges will review a financial statement completed by each parent that lists all sources and amounts of income and expense before issuing an order. If any of the listed items changes significantly, either parent may go back to court and ask for an increase or decrease in the amount of child support ordered.

Q: Once a court issues a child support order, can the amount of support that is paid be changed?

A: The amount of child support is modifiable under certain circumstances and through a variety of methods. The simplest method is for the parents to agree to a change, but the court must approve even an agreed-upon change in order to be enforceable.

Example: If the payer parent loses his job and asks the custodial parent if he can go a few months without paying support until he has a new job, the custodial parent may voluntarily agree to this modification. If, however, she later decides that she wants to collect the amount of support that went unpaid during that temporary period, the court might support her request even if it never formally approved the change.

When there is no voluntary agreement, the party seeking the change must request a court hearing at which each side will present, usually through counsel, the reasons supporting and opposing the modification. The court usually will not grant the request unless there has been some fairly significant change in circumstances that justifies the change, such as a significant increase in either parent's income through a job change or a substantial change in the needs of the child. Changes in the child support laws, too, may justify a change in previously issued orders. Other anticipated changes that can be provided for in the original child support order include a reduction upon the emancipation of each child or any other change based on an event that the parties anticipate and that will have an impact on need or ability to pay.

Q: How is child support collected if the person responsible for paying it moves to another state?

A: Under the Revised Uniform Reciprocal Enforcement of Support Act (RURESA), an order for support issued by the family court in one state will be enforced by the family court in another state to which the paying parent moves if certain conditions are met. Under RURESA, the custodial parent has two options for how to proceed to collect support.

Under the first option, the custodial parent who receives the support must register the order for support in the county where the payer parent now lives. The family court in that county can provide information on the proper registration procedure. That court will then move to enforce the order and make the non-custodial parent pay. The payer parent can, however, go to court in his or her new home state and argue that the child support amount should be modified downward, and if he or she is successful, the child's home-state court is stuck with the reduced amount. A newer interstate support act called the Uniform Interstate Family Support Act, which has been adopted in some states, does not allow the court in the new home state to modify the original court's support order.

Alternatively, the custodial parent can go to the family court in his or her home state to commence an action to enforce the support award issued by that court. The enforcement agency that serves that court will then notify the payer's new home state so that enforcement actions, such as wage withholding, can be implemented there. Under this method, the payer cannot get the award modified in his or her new home state. The new state's court can, however, determine that the amount of child support ordered is too high and require that only a portion of it be paid, but the original state does not have to accept the reduced amount. The payer remains liable for the full amount as originally ordered, and if he or she fails to pay it, the original state may issue an arrest warrant, and the delinquency can show up on the payer's credit report.

Q: Under what circumstances will the court award alimony or spousal support?

A: The obligation of spouses to support each other does not necessarily terminate when they divorce. If the divorce will leave one spouse with very little income and the other with enough to contribute to the low-income spouse's support, the court will usually award spousal support, at least temporarily.

Although historically spousal support was typically awarded to homemaker wives, to be paid by breadwinning husbands, that is no longer always the case. Now, either spouse may be awarded alimony if the other has the more substantial income and the recipient spouse's income is insufficient to support him or her at the level to which the spouses were accustomed during the marriage.

Spousal support is often awarded in cases in which one spouse has put his or her education or career on hold in order to raise the parties' children while the other climbed the career ladder and achieved a higher income. In such cases, the support will often be temporary, providing income for the period of time that will enable the recipient spouse to become self-supporting. This temporary, or rehabilitative, spousal support enables the spouse receiving it to further his or her education, reestablish himself or herself in a former career, or complete childrearing responsibilities, after which time he or she can be self-sufficient. If one spouse is unable to get a job paying a sufficient wage, however, due perhaps to health or advanced age, the support award may be long term.

The amount and duration of alimony depends on several factors, including:

• The length of the marriage;
• The age of each spouse;
• The health of each spouse;
 The ability of each spouse to be self-supporting, including a consideration of responsibilities to the parties' minor children, if any;
• The income of the primary breadwinner;
• Standard of living the parties enjoyed during the marriage.
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