Is There Common Law Marriage In California?

No, even when you have given the best seven years of your life:

As noted by the US Census, the percentage of married families continues declining while the percentages for all other family groups increase ( As more and more couples, especially seniors, choose cohabitation over marriage, the needlessly muddled views on the common law marriage doctrine remain a matter of perspective. One partner might think that living together without marriage for seven, ten or any other number of years will provide marital rights of spousal support, property division, and/or death benefits. Conversely, the other partner in that relationship – usually the partner in control of the finances – will view living together differently than marriage. Even though some vague, flawed understanding of a common law marriage might be shared by the partners, more is needed than time together to move beyond unmarried cohabitants status in California [the putative spouse theory: Family Code § 2251, with a good faith belief in the validity of an otherwise void or voidable marriage].

Common law marriage does not exist in California, irrespective of the parties’ consent and/or their cohabitation [Family Code § 300(a)]. Over 125 years ago, the California Supreme Court Justices made a harsh distinction, in the parlance of their times, between wives and harlots in Sharon v. Sharon, (1889) 79 Cal. 633. Though unrecognized by the all-male court at the time, older and financially stable men were, and are, just as much opportunists as other opportunists. Curbing specious claims as well as those aboveboard, the legislature defined marriage as more than a stable relationship, cohabitation, and children.

Without common law marriage, cohabitants in California are left to traditional contract remedies á la Marvin v. Marvin, (1976) 18 Cal.3d 660. Looking for consideration beyond sexual services, the Marvin court resurrected the inquiry into the marital-like relationship of the unmarried parties. While cohabitation at times helps sway the outcome, Alderson v. Alderson (1986) 180 Cal.App.3d 450, living together is not required to sustain a Marvin claim, Bergen v. Wood (1993) 14 Cal.App.4th 854. There is equality with Marvin, as Whorton v. Dillingham, (1988) 202 Cal.App.3d 447, found that same sex partners enjoyed equal contract rights. Undoubtedly, there is fairness with Marvin as the court foresaw the “evolution of additional equitable remedies” Marvin at 684.

Substantial Evidence Supported Trial Court’s Termination of Adoptive Father’s Parental Rights

In Re Marriage of E. & Stephen P. (2013) 213 CA4th 983 (2nd Dist):

Adoptive mother E. petitioned trial court to terminate adoptive father Stephen’s parental rights under Family Code § 7827. Requiring evidence from two experts, FC § 7827 provides for the termination of parental rights of a mentally disabled parent when the parent is likely to remain mentally disabled for the foreseeable future and accordingly unable to care for and control the child adequately. Prior to the adoption, Stephen treated his mental illness with medication but then stopped after the adoption, causing a deterioration of his mental condition and leading to marital discord and harmful parenting. Most notably, Stephen once tried to force E. and minor into his car causing minor to fall from mother’s arms fracturing his skull. Separately and according to E., Stephen then also suffered a conviction for the attempted murder of his own mother. E. pursued divorce, moved out of state with minor, filed to terminate parental rights once but did not pursue to a court determination, and then filed to terminate again with the trial court siding with her.

The Court of Appeal ruled that the father’s contentions under Family Code §§ 7850 and 7851 that a licensed clinical social worker should have made a report at trial could not be raised on appeal as Stephen had not raised that issue during trial. The Court of Appeal found that the clinical social worker’s report was not jurisdictionally required but could have been considered as procedural and evidentiary. Stephen was already with appointed counsel, an appointed guardian ad litem, there were two psychiatrists and one psychologist, and then there was appointed minor’s counsel. Without other less drastic alternatives because of father’s continued failure to comply with required medical treatment, any remedy short of termination would be inimical to minor’s welfare.

Though “the right of parents to raise their own children is so fundamental that termination of that right by the courts must be viewed as a drastic remedy to be applied only in extreme cases” [In re Victoria M. (1989) 207 CA3rd 1317, 1326], the Court of Appeal found forfeiture of the FC §§ 7850 and 7851 claims applied in part to promote efficiency and to deter gamesmanship – but regardless, three experts provided evidence at trial so clinical social worker likely would have been cumulative.

Grandparent Seeking Visitation Must Satisfy Clear and Convincing Burden of Proof

Rich v. Thatcher (2011 DJDAR 16570), 2nd App. Dist., November 14, 2011

Family Code § 3102: Grandparent Seeking Visitation Must Satisfy Clear and Convincing Burden of Proof To Overcome Rebuttable Presumption

Mother gave birth to child in 2006, and Father filed Petition to Establish Parental Relationship in 2010.  Father died in 2010, and Grandmother filed a Petition for Joinder which the trial court granted.  Obviously, Mother and Grandmother “do not get along.” After an evidentiary hearing on Grandmother’s visitation request, the trial court found (1) that Grandmother failed to provide clear and convincing evidence to overcome rebuttable presumption that a fit parent will act in the best interests of the child, and alternatively (2) that granting visitation to Grandmother would not be in best interests of child even if presumption were overcome.  The trial court denied Grandmother’s visitation request and the Court of Appeal affirmed.

The Court of Appeal ruled that the rebuttable presumption required by IRMO W., (2003) 114 Cal.App. 4th 68, and others of its like, “in favor of a fit surviving parent’s decision that grandparent visitation would not be in the best interest of the child” can only be overcome by clear and convincing evidence and not just a mere preponderance.  Partially relying on IRMO Gayden, (1991) 229 Cal.App. 3d 1510, 1517-1520 (where the court considered the evidentiary standard applicable to a custody award to a nonparent under what is now Family Code § 3100), and also Justice Chin’s opinions in IRMO Harris, (2004) 34 Cal.4th 210 (higher burden needed to promote a parent’s constitutionally protected first choice), the Court of Appeal found that the “higher degree of the burden of proof . . . demonstrates that there is a preference in favor of the presumably correct choice of a fit sole surviving parent.”  Grandmother failed to prove denial of visitation would be detrimental.

Again, the sole surviving parent has the first choice against Grandparents just as “[t]he custody, care and nurture of the child reside first in the parents whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” Troxel v. Granville (2000) 530 U.S. 57, 65-66.