Does Fair Have Anything To Do With It?

Michael G. Loeffler’s recent article in the California Lawyers Association publication Family Law News discusses the nuances of “fairness” in family law.

Click here for a reproduction of this article.

Despite family law courts being courts of equity, the California Family Code is not based on fairness.  Clint Eastwood once said, “Fair’s got nothing to do with it.” Perhaps that is as it should be.

This article has two main points:

  • In some instances, the courts’ current practices in administering the Domestic Violence Protection Act (DVPA) end up with a result that one might consider unfair from an economic standpoint.
  • Additionally, the same court practices sometimes result in orders that are not in the best interests of children.

Both the Family Code and case law emphasize that the court’s first priority is to ensure “the best interests of the child” and that this should normally include frequent and continuing contact by both parents.  Additionally, there is a strong statutory intent in taking appropriate steps to stop domestic violence. In recent years, the term “domestic violence” has been expanded. “Domestic violence” under the Family Code, unlike the Penal Code, is defined as, among other actions, anything that “disturbs one’s emotional calm.”

The reality is that these interests sometimes conflict in DVPA proceedings….

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