The Social Determinants of Health (SDOH) are various factors in our lives that influence the quality of our health. These are examples of elements that can negatively impact our health:

• Income
• Zip code
• Race
• Education
• Sex/gender
• Nationality
• Physical and mental ability

Individuals who belong to a minority group in any of these categories often suffer negative consequences, including shorter lifespans. The SDOH highlight inequities in society that ultimately affect quality of life. In family court, considering the SDOH is essential in cases involving child custody, visitation, child support, and spousal support. For instance, if one parent cannot provide a safe and nurturing environment for their child but has the desire to do so, while the other parent can provide such an environment but lacks the willingness, the solution is not to award custody to the parent who can provide but does not want to. Instead, the child should be placed with the parent who wants to care for them, with the other parent providing financial support through child support payments.

Just like Adverse Childhood Experiences (ACEs), the SDOH should be mitigated as much as possible. Courts, legal practitioners, and parties involved in court cases—especially those involving children—should be educated on both ACEs and SDOH. At the very least, ACEs and SDOH provide frameworks for decision-making. Ideally, they guide the types of lifestyle choices that should be encouraged for parties involved in family law litigation.

Moreover, the SDOH can be applied more broadly in all areas of the legal system. For example, if a party in traffic court cannot afford a fine, they should receive an immediate referral to a job program, located within the courthouse. This approach would promote employment and accountability, rather than relying on community service or fee waivers. In this way, courts could serve as hubs for social development, rather than places where marginalized individuals face additional hardships without a sense of justice being achieved.

Your judge is human. They do not know your family or situation beyond what you present in court. It is your responsibility to provide the judge with the information they need to make a decision in your favor. Without the right information, presented clearly and effectively, you will not achieve the result you want.

It is important to understand that unless something significant has changed in your case, the law generally favors maintaining the status quo. As the saying goes, “If it ain’t broke, don’t fix it.” However, changes may be necessary if they will improve the situation or reflect current circumstances. Sometimes, the mere passage of time can warrant a change in the order.

If you are advocating to keep things the same, you need to show the judge that no significant change has occurred to justify a new court order and that the current arrangement is working well. Provide specific examples of how maintaining the current order produces the best outcome. The more compelling your examples, the stronger your argument. If your examples are weak, you risk showing the judge that the current arrangement is not ideal, and they may be more inclined to make a change.

On the other hand, if you are seeking a modification, you must provide specific, significant examples of how the proposed change will produce better results. Each change you request will likely require a court order, and every court order must be supported by substantial justification. To do this, you need to present a clear, concise, and compelling story with facts that demonstrate the importance of each order you are requesting.

Another crucial point to understand is the concept of burdens and standards of proof. If you are the one requesting the court order, you bear the burden of proving why the court should grant it. The standard of proof dictates how much evidence is required to meet this burden. In most family law matters, the standard of proof is “more likely than not.” This means you must show that it is more likely than not that you are entitled to the order you are requesting. The judge will weigh your argument against the opposition’s and determine which side is more likely to be correct. In numerical terms, the winning party must prove their case by 50.0001%.

To succeed in court, you need to know your audience (the judge), know what you want, understand what you need to prove, and how much evidence you need to meet the standard of proof. By applying this strategy, along with the proper use of forms, declarations, and discovery, you increase your chances of winning—provided you meet your burden and the standard of proof required.

There is a legal presumption that a parent who commits domestic violence should not have custody of a minor child. However, this presumption can be rebutted. Rebutting a presumption means disproving the underlying fact that supports the presumption. In cases involving domestic violence, the presumption is that a parent who commits domestic violence is unfit to have custody of a child. Rebutting this presumption means proving that the offending parent is actually fit to have custody and that such custody would be in the child’s best interest.

An example of rebutting the presumption might involve the offending parent demonstrating that the non-offending parent does not have a strong relationship with the child, and leaving the child in their care would be detrimental. Alternatively, the offending parent may show that the non-offending parent has a substance abuse problem, and that exposure to this issue would be more harmful to the child than exposure to the offending parent.

In addition to proving that the offending parent having custody is in the best interest of the child, the offending parent may be required to participate in certain services and follow all legal requirements. To effectively rebut the presumption against custody, the offending parent should complete and comply with the following:

• A batterer’s treatment program;
• A program of alcohol or drug abuse counseling, if the court determines that counseling is necessary;
• A parenting class, if the court deems it appropriate;
• Compliance with all terms and conditions of probation or parole;
• Compliance with all terms and conditions of any domestic violence restraining orders or protective orders;
• No further acts of domestic violence; and
• No possession or control of firearms or ammunition.

To successfully prove that the presumption against custody has been rebutted, the offending parent will need to present credible evidence. This evidence should include the following:

• Evidence that custody by the offending parent is in the best interest of the child’s health, safety, and welfare;
• Proof that continued separation from the parent is detrimental to the child;
• Documentation of completion of all required programs;
• Evidence of no violations of the law or illegal activities; and
• Any other relevant evidence that supports the rebuttal of the presumption.

Credible evidence refers to any evidence that is admissible under the evidence code and is trustworthy and believable. This includes testimony from reliable witnesses, experts, and representatives from the programs the offending parent participated in, who can speak to their meaningful participation. To make a request and present your evidence, you should prepare and present your case as you would for any other legal matter, hearing, or trial in family law court.

If a parent has been found to have committed domestic violence against any of the following individuals, there is a legal presumption that the perpetrating parent should not have legal or physical custody:

• The child;
• The child’s siblings;
• Any child with whom the parent has a caretaking relationship;
• The other parent; or
• A person the perpetrating parent is living with or dating.

Under California law, when a court issues a custody and visitation order, it must consider what is in the child’s best interest. The determination of a child’s best interest varies from case to case, so there is no universal rule for every situation. However, it is clear that domestic violence is not in the best interest of a child.

The presumption against granting custody to a parent who has committed domestic violence means that it is assumed the offending parent should not have custody, as this would not be in the child’s best interest. Unless the court receives compelling evidence to the contrary, the judge is required to award sole legal and physical custody to the other parent. This presumption applies to any domestic violence committed within the last five years.

That being said, the presumption can be rebutted. To rebut a presumption means to present strong evidence that undermines the assumption underlying the presumption. In this case, to rebut the presumption, the parent must prove that the child’s health, safety, and welfare would be best protected by allowing the offending parent to have custody. The law presumes that domestic violence causes psychological trauma to children, regardless of the specific circumstances. Therefore, there must be a compelling reason for the court to disregard this presumption.

One way to attempt to rebut the Family Code Section 3044 presumption is to participate in programs that demonstrate accountability, growth, and remorse. If a parent remains defensive, denies the violence, or shows no remorse, the court will likely conclude that the underlying issues that led to the domestic violence remain unresolved, and custody will be denied. To have the best chance of regaining custody after a domestic violence finding, the parent should approach the process with humility, show personal growth, and express to the court how this growth has made them a better parent. Additionally, the parent must convincingly explain why granting them custody would be in the best interest of the child.

This situation occurs more often than many people realize. To clarify, Child Protective Services (CPS) does not remove children from their homes simply because a parent is a victim of domestic violence. Rather, CPS intervenes when children have likely been exposed to domestic violence in some way. Such exposure can be emotionally, and possibly physically, traumatic. CPS’s primary goal is to protect children from these harmful effects.

A parent who is a victim of domestic violence but remains with the perpetrator places their children at risk of being exposed to the violence. This exposure may happen directly, through physical abuse of the children, or indirectly, by the children witnessing the abuse of another person. The failure to protect children from exposure to violence is often the reason CPS may remove children from a parent who is a domestic violence victim.

When CPS removes children, a case is opened in the dependency court. The purpose of dependency court is not to punish parents; any punishment for wrongdoing would occur through the criminal court. Instead, the goal of dependency court is to protect children from abuse and neglect. While the removal of a child may feel punitive to the parent, the sole concern of the Department of Children and Family Services (DCFS) is whether the child is safe from abuse or neglect. If the child is safe, the case may be transferred to another court.

Sometimes, parents find themselves in situations beyond their control, but this does not excuse allowing a child to be exposed to domestic violence. If you are a parent and a victim of domestic violence, your first priority should be ensuring the safety of your children. After that, you should seek an order of protection to prevent future abuse. It is also crucial to end your relationship with the abuser and ensure your children are not exposed to any further abuse. This may require going to court to obtain a domestic violence restraining order, which can include custody orders.

If you have an open dependency case, it is essential to fully engage with the services provided to you in order to regain custody of your children. It is also important to have legal representation throughout this process, as every parent has the right to appointed counsel in dependency cases.

Adverse Childhood Experiences (ACEs) are traumatic incidents experienced during childhood that significantly shape how individuals navigate the world as adults. Some common ACEs include:

• Domestic violence
• Substance abuse
• Divorce
• Physical, sexual, or emotional abuse
• Emotional or physical neglect
• Mental health issues
• Food insecurity and other forms of instability
• Homelessness
• Loss of loved ones
• Other adversities such as war, terrorism, bullying, discrimination, etc.

These experiences can profoundly impact both mental and physical health and are strong predictors of delinquency, poverty, obesity, and other social challenges that people face throughout life. In family court, the goal is to prevent children from being exposed to ACEs. Although family attorneys are not specifically trained in ACEs, these issues are frequently addressed in court. The California Welfare and Institutions Code and Family Code specifically prohibit exposing children to certain ACEs.

For example, physical, sexual, and emotional abuse and neglect will trigger a dependency case under the Welfare and Institutions Code. Meanwhile, domestic violence, substance abuse, and other forms of adversity and instability are key factors used by the Family Court to determine custody and visitation orders. ACEs provide an effective framework for viewing cases involving children. If the objective is to protect children from exposure to ACEs, every custody and visitation case should address ACEs and consider how the proposed orders will either shield the child from or expose them to these traumatic experiences.

One thing to keep in mind about ACEs is that they highlight only the traumas. A simple way to identify the positive aspects of parenting is by flipping each ACE—for example, transforming physical, sexual, and emotional abuse into physical, sexual, and emotional safety. The Family Code sets a basic standard for protecting a child’s health, safety, and welfare, as well as promoting frequent and continuing contact between both parents. However, the Family Code also leaves room to consider positive elements of parenting beyond just avoiding harm. These positive elements include:

• Education
• Encouragement of hobbies, passions, and interests
• Cultural and spiritual enrichment
• Support for developmental and emotional maturity

There are many other examples of positive parenting to consider. ACEs should be the starting point in any analysis, followed by considering the positive opposites of each ACE. Additionally, more nuanced benefits of the parent-child relationship should be factored in when deciding custody and visitation orders. This approach can help effectively argue and determine what is in the “best interests of the child” in family court.

An additional tool that can be used alongside ACEs is the Social Determinants of Health (SDOH), which further explores the factors influencing a child’s well-being.

In California family law, if a spouse owns property prior to marriage, that property remains their separate property after marriage. If they sell the property, any proceeds from the sale are considered separate property, even if the sale occurs during the marriage. Additionally, if the property generates rental income, that income is the spouse’s separate property, regardless of whether it is earned during the marriage. The only time a spouse may be entitled to a portion of the other spouse’s separate property is if community property funds were used to pay for that property.

Community contributions to a spouse’s separate property typically occur when the mortgage or loan payments on the property are made with income earned during the marriage. Since income earned during the marriage is considered community property (even if the spouse held the job prior to marriage), any mortgage payments made with that income are treated as community contributions toward the separate property. Furthermore, if a spouse refinances their separate property during the marriage and uses community property income to pay the new loan or mortgage, the entire property may be classified as community property.

If there is no refinance, the community is entitled to a proportional share of the property, based on the extent to which community property funds were used to pay down the mortgage. However, if there is a refinance, the community may be entitled to claim the entire property as community property. Each spouse is entitled to one-half of all community property.

The method used to calculate a spouse’s share of the other spouse’s separate property is called the Moore-Marsden Calculation, named after two court cases: Moore, which established the calculation, and Marsden, which refined it. To apply the Moore-Marsden Calculation, the following four pieces of information are needed:

• The purchase price of the home;
• The principal owed at the time of marriage;
• The principal owed at the time of separation; and
• The value of the home at the time of trial or settlement.

The calculation involves the following six steps:

Step One: Determine the amount by which community property funds were used to pay down the principal.

Step Two: Calculate the community property percentage share by dividing the amount from Step One by the purchase price of the property.

Step Three: Calculate the appreciation in the value of the home during the marriage by subtracting the purchase price from the current value of the home.

Step Four: Calculate the community property’s share of the appreciation by multiplying the percentage from Step Two by the amount from Step Three.

Step Five: Calculate the total community property interest by adding the amount from Step Four to the amount from Step One.

Step Six: Divide the total community property interest (from Step Five) by two to determine each spouse’s share of the community property interest.

This amount does not have to come directly from the house. For example, if the community property interest is calculated to be $50,000, the spouse who owes that amount can pay it using any of their separate property or their share of community property. Additionally, this amount can be used to offset any other payments one spouse may owe the other. This process is called an “offset.”

Arbitration is sometimes a more effective alternative to court action for family disputes. Using alternative dispute resolution approaches, such as arbitration might help resolve problems that a family court judge would otherwise handle. Instead of having to appear in court, spouses or ex-spouses may utilize the arbitration procedure. Many individuals feel that less adversarial outcomes are more likely when using arbitration.

Arbitration is a process in which a trained, neutral third party hears both sides of a dispute and then makes a binding decision on the matter. This can be an attractive option for couples who want to avoid the public nature and formalities of court proceedings. It can also be less expensive than going to trial, and it can be completed in a shorter time frame.

When Can You Use Arbitration?

Arbitration can be used for a variety of family law disputes, including but not limited to:

• Child custody and visitation: Parents can use arbitration to come to an agreement on a parenting plan that will work for their family.
• Child support: Parents can use arbitration to determine the amount of child support that one parent will pay to the other.
• Alimony or spousal support: Spouses can use arbitration to agree on the amount and duration of alimony payments.
• Division of property: Spouses can use arbitration to come to an agreement on how to divide their assets and debts.

How Do You Agree to Use Arbitration?

In order for arbitration to be binding, both sides must agree to use this method to resolve their dispute. This can be done by signing a contract that states that you agree to arbitrate your dispute. Alternatively, you and the other party can go to an arbitration hearing without having previously agreed to arbitrate. If you do not agree with the arbitrator's decision, you can still go to court to have a judge hear your case.

Who Should Consider Arbitration or Other ADR Methods?

Several families can use arbitration and other ADR methods when looking to dissolve a dispute. A family may consider using an arbitration provision in an agreement with a spouse if:

• The couple has a history of being able to communicate and work together to make decisions;
• Both spouses feel comfortable with the idea of using arbitration to resolve their dispute;
• The couple wants to keep their dispute private;
• The couple wants to save time and money by avoiding a trial.

Some couples may not be suited for arbitration because they cannot communicate or work together to decide. If a couple cannot agree on the use of arbitration, it is likely that they cannot agree on the terms of their divorce. In this case, it may be best to let a judge hear the case and decide.

Contact us if you are looking to use arbitration to resolve a family law dispute. We can help you determine if this is the best option for your situation and, if so, we can assist you in drafting an arbitration agreement or contract. We can also represent you at an arbitration hearing.