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Nathalie Paluch Featured in the Daily Journal for “Anniversary Brings No-Fault Divorce History Into Spotlight”

On Behalf of | Jan 14, 2019 | Blog |

Nathalie Paluch was recognized in the Daily Journal for her article, “Anniversary Brings No-Fault Divorce History Into Spotlight.”

The equity of no-fault divorces and dissolutions have greatly benefited the practice of family law in California. The 50-year anniversary of California’s signing of the first no-fault law warrants a look back on the history of what this momentous law has done for women and men who have been afforded the right to dissolve marriages in a more safe, transparent and equitable manner.

No-fault began with Herma Kay, an attorney and law professor, who drafted what became the Family Law Act of 1969, with the intent of women being “free and conscious actors [without anything standing] in the way of their self-realization,” according to Kay.

The no-fault divorce that Kay championed gave all California residents the opportunity to decide for themselves who they would or would not like to share their lives with. California was the first in the nation to make this shift and was truly a pioneer in offering no-fault dissolutions alongside the first developed nations to do so.

A timeline of some of the pivotal gains for women in family law illustrates how the Family Law Act led the way for many of avenues both men and women have to stay safe and happy in any domestic scenario they may choose with the partner they love.

  • 2010 – All 50 states permit no-fault divorce
  • 1984-2004 – Research shows a 20 percent drop in suicides and a 33 percent drop in domestic violence in no-fault states
  • 1986 – Canada adopts the no-fault divorce
  • 1980 – California pioneers the “collaborative divorce” 
  • 1975 – Australia adopts no-fault divorce
  • 1969 – California pioneers the no-fault divorce
  • 1960s – Women homemakers had no access to bank accounts or credit and marriage was considered legally indissoluble in California
  • 1819 – Divorce in Alabama required a bill approved by two-thirds of the state legislature
  • 1800s – Wives were considered property of husbands

Today, the reckoning of the #MeToo movement and the women’s marches bring entirely new legal developments to the forefront.

For example, since 2014, the courts have been developing case law under Family Code 7612(c), commonly known as the “three-parent rule.” Under this new body of law, courts are exploring the circumstances under which it is necessary and consistent with a child’s best interests to find that the child has more than two parents.

The focus of this new body of law is to protect the established relationships of a child and “avoid the ‘disastrous emotional, psychological, and financial consequences for a child, who may be separated from one or two parents he or she has always known.'” In re Donovan L., 244 Cal. App.4th 1087, 1089.

Three recognizable parents can occur in a number of different ways and can legitimately identify the true nature of some unique family law contexts. Some three-parent families come from same-sex couple arrangements, surrogates, donors or other fertility-related scenarios.

The precedent set in Donovan of a potential third parent, many times a nonbiological parent, can have the same legal rights and responsibilities afforded to him or her as any other parent would. Interestingly, in a two-parent scenario, an individual acting in a parental role can already be recognized to be in a parental role by estoppel, so the three-parent rule logically extends this existing rule.

As an example, let’s say that a same sex female couple uses a donor to start a family. Under older law, only the donor and the biological mother would be parents until other legal processes took place. A parent in a daily, primary caregiving role may not be legally recognized without this new rule.

Just as Kay’s no-fault divorce gave all California residents the opportunity to decide for themselves who they would or would not like to share their lives with, the three-parent rule enables families to decide for themselves who (and how many!) members comprise their unique family.

Taking the idea of the autonomy of a no-fault divorce to parenting roles and the three-parent rule, the court can now formalize the role of parent to all three individuals, sometimes even going so far as to be able to name all three on the birth certificate. The three-parent rule is the Court’s effort of preventing separation, instability and emotional distress in the hopes of creating the best outcomes for the child.

While the courts have not fully ruled on how this may apply to new DNA techniques where some gene splicing from a third party helps to curb or prevent rare genetic disorders, the rule would potentially permit for inclusion for these and other medical interventions where three parents would be involved biologically or emotionally. More examination of the scientific applications of the three-parent rule are necessary.

In addition, these new three-parent rules are different than the legal rights afforded previously to stepparents, who already have the right to petition for visitation and can petition for child support.

Since the creation of this precedent in the state of California, 10 additional states have adopted similar rules including Maine and New York. The idea of families, women and individuals determining their own best family structure continues to this day and follows in Kay’s footsteps.

While there are many unsettled issues arising from the three-parent rule, one thing is certain: This statute and the related case law will continue to build on Kay’s legacy working to establish equity for all parties, including the minor children in family law proceedings.

Nathalie Paluch is an attorney with the Law Office of Peter A. Lauzon.She is a certified family law Specialist.