John Myers - Family Law in a Nutshell

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JESSE H. CHOPER

Professor of Law and Dean Emeritus,
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JOSHUA DRESSLER

Distinguished University Professor, Frank R. Strong Chair in Law
Michael E. Moritz College of Law, The Ohio State University

YALE KAMISAR

Professor of Law Emeritus, University of San Diego
Professor of Law Emeritus, University of Michigan

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Professor of Law, Chancellor and Dean Emeritus,
University of California, Hastings College of the Law

LARRY D. KRAMER

President, William and Flora Hewlett Foundation

JONATHAN R. MACEY

Professor of Law, Yale Law School

ARTHUR R. MILLER

University Professor, New York University
Formerly Bruce Bromley Professor of Law, Harvard University

GRANT S. NELSON

Professor of Law, Pepperdine University
Professor of Law Emeritus, University of California, Los Angeles

A. BENJAMIN SPENCER

Earle K. Shawe Professor of Law,
University of Virginia School of Law

JAMES J. WHITE

Robert A. Sullivan Professor of Law Emeritus,
University of Michigan

FAMILY LAW

IN A NUTSHELL

SIXTH EDITION

JOHN E.B. MYERS

Professor of Law
University of the Pacific
McGeorge School of Law

HARRY D. KRAUSE

Max L. Rowe Professor of Law Emeritus
University of Illinois

The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.

Nutshell Series, In a Nutshell and the Nutshell Logo are trademarks registered in the U.S. Patent and Trademark Office.

COPYRIGHT 1977 HARRY D. KRAUSE

COPYRIGHT 1986, 1995 WEST PUBLISHING CO.

West, a Thomson business, 2003

2007 Thomson/West

2017 LEG, Inc. d/b/a West Academic

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West, West Academic Publishing, and West Academic are trademarks of West Publishing Corporation, used under license.

Printed in the United States of America

ISBN: 978-1-68328-254-9

For Kim, with love, from John

To my grandchildren, Ben, Joseph, Aiesha and Lizzybabies when I dedicated my third edition to them, and now all four of them proud 2016 college graduates!

H.D.K.

PREFACE

This is the 6th edition of my favorite little book. More accurately, it is now John Myers successor edition. Taking advantage of some of my material, John brings the Nutshell into the current world of family law. Together, we hope this book is useful to future family lawyers.

Harry D. Krause

OUTLINE

Chapter 2. The Constitution and the
Family

That Contemplate
Divorce

Are Parties to a Prenuptual Agreement
in a Confidential Relationship?

54[B]Defenses to Divorce During
the Era of Fault

56[A]Jurisdiction to Grant
Divorce

56[B]Jurisdiction to Establish the
Parent-Child Relationship

56[D]Jurisdiction over Child
Custody

Domestic Relations Exception to
Federal Jurisdiction

511[A]Agreement Regarding
Attorneys Fees

511[B]Court-Ordered Attorneys
Fees

Restoration of Pre-Marriage Last
Name

63[C] Acknowledgment of
Paternity

63[F] Proceeding to Establish
Paternity

Should Children Testify in Custody
Cases? Should the Judge Talk to the
Kids?

Jurisdiction Regarding Child
Custody

Federal Parental Kidnapping
Prevention Act : 28 U.S.C. 1738A
(PKPA)

718[A]Jurisdiction to Render an
Initial Custody
Determination

718[I]Register Out of State
Custody Determination

718[K] Notice and Opportunity to
Be Heard

on Civil Aspects
of International Child Abduction

719[A]Court Does Not Conduct
Best Interest Analysis

719[B]Wrongful Removal and
Wrongful Retention

719[F] Defenses to Return of
Child

719[F](1) Grave Risk of Physical or
Psychological Harm; Intolerable Situation

719[F](2) Return Is Inconsistent
with Human Rights

719[F](3) Well-Settled in the
United States

719[F](4) Child Objects to
Return

Visitation with Grandparents and
Other Non-Parents

Appendix B. Hague Convention on the
Civil Aspects of International Child
Abduction

Uniform Interstate Family Support
Act

Child Support Includes Health
Insurance

Duty to Support Disabled Adult Child
or Parent

Are Child Support and Visitation
Linked?

Is Spousal Support Justifiable
Today?

Chapter 10. Property Issues in Family
Law

Contracts Regarding Property;
Fiduciary Duties

Beginning and End of Marital/
Community Property

Property Work of the Family Law
Lawyer

1013 Retirement Benefits from
Employment

1013[A] Basic Pension
Terminology

1013[B] Defined Benefit and
Defined Contribution
Plans

1013[C] Determining the Marital/Community
Property Portion of a
Pension

1013[D] Methods of Dividing
Pensions

1013[G] Qualified Domestic
Relations Order (QDRO)

1021[C] Excess Front End Loading
of Spousal Support: Property Division Disguised as
Spousal Support

1025[B] Defenses Against
Enforcement of MSA

1025[C] Incorporation of MSA into Judgment or Decree of
Divorce

1026 Property Transfers to Avoid Paying
Debts

Relation-Back Doctrine in
Annulment

Brief History of Intimate Partner
Violence

127[F] Arrest for Violation of
IPV-PO

127[G] Mutual Restraining
Orders

127[H] Proceedings Where IPV Protective Orders Are
Available

127[I] Additional Types of
Restraining Orders

133[C] Genetic Stranger
Surrogacy

133[F] Abortion Clauses in
Surrogacy Contracts

for Lesbian,
Gay, and Unmarried Persons

Terminating the Biological
Parent-Child Relationship

International (Intercountry)
Adoption

, Access to Adoption
Records

1413 ICWA and Tribal Customary
Adoption

1417 Adoption by Gay and Lesbian
Individuals

Federal Leadership in Child
Protection

Decision to Involve the Juvenile
Court

Emergency Removal of Child from
Home

1512 Post-Adjudication Placement and
Review

1514[A] Number and Characteristics of Children in Foster
Care

1514[B] Aging out of Foster
Care

1516 Interstate Compact on the Placement
of Children

Chapter 16. Ethical Issues and Malpractice
in Family Law

You Dont Have to Be a Pit Bull to Be
a Good Advocate

Opinion Testimony from Lay and
Expert Witnesses

The Reasonable Certainty Standard
for Expert Testimony

Direct Examination of Expert
Witnesses

Cross-Examination of Expert
Witnesses

179[A] Excited Utterance
Exception

179[E] Prior Inconsistent
Statements

179[G] Business Records
Exception

179[H] Public Records
Exception

1710[B] Discovery and Stipulations Regarding
Authentication

1710[C] Rule 902Self
Authentication

1710[D] Rule 901Documents That Are Not Self
Authenticating

1710[F] Documents Commonly
Offered in Family Law
Cases

TABLE OF CASES

References are to Pages

A.J., In re, 380

A.S. v. I.S., 67, 179

Ablamis v. Rober, 259

Abrell, Marriage of, 271

Acosta v. Acosta, 149

Acosta, People v., 415

Adams v. Adams, 237, 239