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Stipulation for School Communication with Step-Parents and Grandparents [Educational Rights Stipulation Example Form Template]

Generally, California schools can only communicate with birth parents about any issues or concerns regarding their children as a result of certain privacy laws. Problems can arise when involved caregivers who are not biological parents, such as step-parents, grandparents, or other third parties, are not allowed to communicate with the school. This privacy law often ... Read...

Stipulation for School Communication Talkov LawStipulation for School Communication Talkov Law

Generally, California schools can only communicate with birth parents about any issues or concerns regarding their children as a result of certain privacy laws. Problems can arise when involved caregivers who are not biological parents, such as step-parents, grandparents, or other third parties, are not allowed to communicate with the school. This privacy law often leaves stepparents or other caregivers in an awkward position as they cannot effectively communicate with the school about children whose lives they are deeply involved in.

Sometimes, a caregiver may be the best point of contact but is not allowed to speak to the school about the child. The family lawyers at Talkov Law have drafted a Stipulation for School Communication that can be used to allow stepparents or any other authorized caregivers to communicate with the school in the same manner as a birth parent.

We also provide free templates for:

Marital Settlement Agreements

Pet Custody Agreements

Stepparent Adoption Agreements

Family Court Declarations

Sole Child Custody and Visitation Orders

Free Sample Stipulation – Communication with School by Step-Parents, Grandparents, and Other Caregivers [California]:

Dad Doe

12345 Example Ln

Example City, CA 90000

Telephone: (555) 555-5555

Email: daddoe@example.com

 

Respondent Dad Doe, in pro per

 

SUPERIOR COURT FOR THE STATE OF CALIFORNIA

 COUNTY OF EXAMPLE

 

 

MOM DOE,

 

Petitioner,

 

v.

 

DAD DOE,

 

Respondent.

CASE NO. 123456

 

STIPULATION RE: COMMUNICATION WITH SCHOOL

 

 

 

Petitioner Mom Doe (“Petitioner”), and Respondent Dad Doe (“Respondent”) (collectively the “Parties”), hereby enter into this stipulation (the “Stipulation”), and agree as follows:

WHEREAS, Petitioner is the mother and Respondent is the father of the minor children, Example Child One, born [birthday], and Example Child Two, born [birthdate];

NOW, THEREFORE, IT IS STIPULATED by and between Petitioner and Respondent that Example Unified School District, and all personnel therein, may communicate with Stepmother Doe regarding the minor children, Example Child One and Two, in the same manner as they communicate with the parents, Mom Doe and Dad Doe, for all purposes, including under the California Education Code, including, but not limited to, Education Code Section 51101, as well as any federal laws applicable to education, including, but not limited to, the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, with said permissible communication including, but not limited to, online messaging apps and websites, enrollment portals, or otherwise. All prior orders not in conflict with this Stipulation shall remain in full force and effect.

We have read this entire Stipulation and agreement.  We understand it fully and request any Court order related thereto. We waive all further notice and acknowledge receipt of this Stipulation.  The foregoing is agreed to by:

 

DATED:                                                         ______________________

Mom Doe, Petitioner

 

DATED:                                                         ______________________

Dad Doe, Respondent

Stipulation re School Communication.docx

Stipulation re School Communication.pdf

Our knowledgeable family law attorney, Colleen Talkov, can also help if you have questions about any of the following:


Milian v. De Leon – True Joint Tenancy in a Partition Action

Milian v. De Leon (1986) 181 Cal.App. 3d 1185, 1195 Milian v. De Leon is one of the most fascinating cases in California partition actions in that it found that, “once the court in a partition action has determined that a true joint tenancy exists, it may not order reimbursement or contribution on account of differences in ... Read...

Milian v. De Leon true joint tenancy in partition actionsMilian v. De Leon true joint tenancy in partition actions

Milian v. De Leon (1986) 181 Cal.App. 3d 1185, 1195

Milian v. De Leon is one of the most fascinating cases in California partition actions in that it found that, “once the court in a partition action has determined that a true joint tenancy exists, it may not order reimbursement or contribution on account of differences in the amounts the parties have paid toward the initial acquisition of the property.” Milian v. De Leon (1986) 181 Cal.App.3d 1185, 1195. Effectively, a true joint tenancy is similar to community property in a marriage in that each party’s contributions and expenses come from a common pool such that neither is entitled to reimbursement upon a divorce.

True Joint Tenancy in a Partition Action

The case involved a partition action between an unmarried couple who “had agreed to pool their resources or some of them to acquire the property in dispute and had agreed to own it equally irrespective of their individual contributions to the purchase price and expenditures for improvements to and maintenance and preservation of the property.” Milian v. De Leon (1986) 181 Cal.App.3d 1185, 1191. Importantly, the property was held in joint tenancy, not in tenancy in common.

California Civil Code 683(a) defines a joint tenancy as:

A joint interest is one owned by two or more persons in equal shares, by a title created by a single will or transfer, when expressly declared in the will or transfer to be a joint tenancy, or by transfer from a sole owner to himself or herself and others, or from tenants in common or joint tenants to themselves or some of them, or to themselves or any of them and others, or from spouses, when holding title as community property or otherwise to themselves or to themselves and others or to one of them and to another or others, when expressly declared in the transfer to be a joint tenancy, or when granted or devised to executors or trustees as joint tenants.

A joint tenancy “requires unity of interest, unity of title, unity of time, and unity of possession.” McDonald v. Morley (1940) 15 Cal. 2d 409, 412. In addition to meeting these four unities, a joint tenancy also contains the right of survivorship. If a joint tenant passes away, his or her interest is automatically divided among the surviving joint tenant(s) where it then becomes a tenancy in common. Indeed, California’s default manner of co-ownership is a tenancy in common, making joint tenancy a relatively rare occurrence.

Factors to Find a True Joint Tenancy

A common example of a “true joint tenancy” is when an unmarried couple purchases a home together in joint tenancy and treats their finances like a marriage. As Milian explained, a true joint tenancy may be found where an unmarried couple “both contributed significant financial resources and nonfinancial efforts to the acquisition of the home, furnishings, appliances, improvements, decoration and landscaping.” Milian v. De Leon (1986) 181 Cal.App.3d 1185, 1195-1198. Examples may include where one party pays the mortgage while the other pays other household expenses. Either way, both joint tenants are equal owners of the property and neither may make claims for reimbursement.

Accounting in a True Joint Tenancy

A partition action between tenants in common typically allows for an accounting of offsets, including reimbursements for improvements, repairs, mortgage payments, and more. Tenancy in common does not require that all co-owners own equal shares of a home. By contrast, the Milian court found that, “by definition joint tenancy ownership means equal ownership (see Civ. Code, § 683), and in the absence of an agreement for reimbursement we are unaware of any authority which authorizes reimbursement on account of unequal contributions to the down payment.” Milian v. De Leon (1986) 181 Cal.App.3d 1185, 1195.

Indeed, “once the court in a partition action has determined that a true joint tenancy exists, it may not order reimbursement or contribution on account of differences in the amounts the parties have paid toward the initial acquisition of the property.” Milian v. De Leon (1986) 181 Cal.App.3d 1185, 1195.

To summarize, an accounting is not available in partition actions in which the co-owners are joint tenants. Joint tenants own the property in equal shares, which precludes them from receiving a larger or smaller portion of the proceeds of a sale of a jointly owned property. The concept of a true joint tenancy can be a powerful tool for co-owners who have made contributions to the relationship outside the context of the property where their other co-owner made payments directly tied to the property.

Contact an Experienced Partition Attorney in California

If you want to end your co-ownership relationship, but your co-owner won’t agree, a partition action is your only option. Our experienced partition lawyers have years of experience ending co-ownership disputes and can help you unlock the equity in your property. For a free, 15 minute consultation with an experienced partition attorney at Talkov Law, call (844) 4-TALKOV (825568) or fill out a contact form online.


Talkov Law Announces New Headquarters in Newport Beach

Talkov Law Corp. is excited to announce that the company headquarters will now be in Newport Beach, California. Our new Orange County office is located at 4000 MacArthur Blvd Ste 655, Newport Beach, CA, 92660. Originally founded in 2020 by Attorney Scott Talkov, Talkov Law has represented hundreds of clients throughout California with their partition, ... Read...

Talkov Law Orange County OfficeTalkov Law Orange County Office

Talkov Law Corp. is excited to announce that the company headquarters will now be in Newport Beach, California. Our new Orange County office is located at 4000 MacArthur Blvd Ste 655, Newport Beach, CA, 92660. Originally founded in 2020 by Attorney Scott Talkov, Talkov Law has represented hundreds of clients throughout California with their partition, real estate, family law, business, and bankruptcy issues. Talkov Law will be able to serve an even larger client base with our new modern space and a more central Southern California location.

“We are thrilled with the growth of Talkov Law and look forward to our new office setting, with a beautiful view of the city, ocean, desert, and other vast California areas that we serve. Our new office will allow us to serve clients throughout California for years to come,” said Scott Talkov, President and Founder of Talkov Law Corp.

As always, Talkov Law will continue to represent clients throughout the state of California, including Los Angeles, San Jose, San Diego, Sacramento, and Riverside. To schedule an initial consultation with one of our knowledgeable California attorneys, call (949) 888-8800 or contact us online


What is a Partition Action in California?

Real Estate Partition Definition in California A partition action is a court-ordered equitable division of property. When one or more co-owners disagrees on what to do with a co-owned property, a partition action can be started to force the sale of the subject property. This definition of a real estate partition shows how a partition ... Read...

What is a partition action in CaliforniaWhat is a partition action in California

Real Estate Partition Definition in California

A partition action is a court-ordered equitable division of property. When one or more co-owners disagrees on what to do with a co-owned property, a partition action can be started to force the sale of the subject property. This definition of a real estate partition shows how a partition can be used to divide co-owned property, which usually involves the court overseeing the selling of the property and division of the proceeds in line with the ownership interests of the parties, e.g., 50/50.

Parties Who Can File a Partition Action

A partition action, sometimes referred to as a petition for partition, requires at least two co-owners. Usually, the co-owners disagree on what to do with a co-owned property, most commonly whether the property should be sold or not. Generally, the co-owner in possession prefers not to sell the property. The law is that virtually any co-owner can file a partition action.[1]California Code of Civil Procedure 872.210 describes who is authorized to commence a partition action as: (1) A coowner of personal property. (2) An owner of an estate of inheritance, an estate for … Continue reading

Common Parties to a Partition Action

Generally, at least one party will want to sell the property while the other wants to retain ownership. The party or parties refusing to sell are usually living at the property and receiving the full benefit of property ownership. The experienced partition attorneys

    1. Romantic: Co-owners who were romantically involved but are no longer together are the most common parties to a partition. Effectively, a partition between former romantic partners is the non-married version of a divorce. Often, one partner will continue to remain in the property while another moves out. The partner who does not reside at the property may want to force a sale to receive his or her equity in the co-owned property and to remove their name from the mortgage.
    2. Family and Inheritance: Many co-owners find themselves co-owning property with a family member. While some parties purchase properties with family during their lifetime, other co-owners inherit a home together with their family members. This is a result of very common estate planning that leaves an equal interest in the family home to each child. Co-owners who do not live at the property and receive no benefit from their inheritance will often seek to force the sale of the inherited property to receive their equity due to noncooperation from the sibling still living at or renting out the family home. Note that if the property has not yet been transferred from a trust or estate to the beneficiaries, the issue may be more appropriate in a probate court.
    3. Platonic: Friends who purchased property together. A reliable friend may be instrumental in helping to secure a loan for the home, contributing to mortgage payments, or investing in a property that neither of the parties could afford on their own. However, if this friend wants to sell the property while their co-owners do not, this may lead to a forced sale of the property.
    4. Post-Divorced Couples: Sometimes, parties in a divorce kick the can down the road as to how to split the family home by maintaining co-ownership of the home as their separate property. Perhaps one of the spouses will maintain the family home until the children are of age, or perhaps the parties will live together following their divorce. So long as the divorce judgment states that the parties now own the property as their sole and separate property, a partition is the remedy to solve the co-ownership problems. Note that if the divorce has not yet been finalized, then the property is still community property that is considered a family law matter requiring a divorce attorney with experience in property division.

Can I file a partition? Partition action eligibility

However title is held, there is essentially only one basic requirement for a partition: That the property is co-owned.

Evidence of Co-Ownership – Deeds vs. Quiet Title

Effectively, the only evidence that a plaintiff in a partition will need is evidence that they are a co-owner.

The most common form of evidence of co-ownership is a deed recorded in the county recorder where the property is located identifying the grantee (transferee/buyer/recipient) as the co-owner. For example, the deed might say something like “John Doe hereby transfers to Jessica Doe and Noah Doe.” This evidence is the strongest since nearly all deeds reflect the true owner of the property as presumed by California Evidence Code Section 662.

However, in a few rare cases, the person(s) named as the grantee(s) in the deed, known in the law as the holder(s) of “legal title,” do not reflect the true owner(s) of the property, known in the law as “equitable title” or “equitable owner(s).” For example, perhaps a deed reflects that “John Smith and Noah Smith hereby transfers to Jessica Smith,” but John and Noah merely intended Jessica to hold title for them if they do not live through their forthcoming trip to Mt. Everest. If John and Noah live through their trip, but Jessica refuses to transfer the property back to them, they may need to file an action for quiet title. If John or Noah would also want to end the co-ownership, they can litigate the quiet title action within the context of a partition under California Code of Civil Procedure 872.610. 

Examples in Which a Partition CAN be Filed in California

There are endless variations of ways in which co-owners can hold title in a partition action. Below are a few common iterations that our partition attorneys see in which a co-owner would be eligible to file for a partition action.

Co-Ownership in Which a Partition Action CAN be Filed  Lesson from Partition Law 
A and B, as tenants in common  Partition is available regardless of the manner of co-ownership (tenants in common vs. joint tenants) 
A and B, as joint tenants  Partition is available regardless of the manner of co-ownership (tenants in common vs. joint tenants) 
A and B, as joint tenants with right of survivorship  Partition is available regardless of the manner of co-ownership. Joint tenants means the same thing as joint tenants with right of survivorship.  
A, an individual, owns the property as tenants in common with 50 co-owners.  Either A or any of the other co-owners can file a partition since they are co-owners. It doesn’t matter how many co-owners there are. 
A, an individual, owns the property as tenants in common with 50 co-owners, all of whom disagree with A’s desire to file a partition.   Either A or any of the other co-owners can file a partition since they are co-owners. It doesn’t matter if the other co-owners also want a partition action as the court will not force A to be a co-owner, but will instead sell the property to the extent it cannot be divided in a partition in kind 
A, an individual, holds a 1% interest in a property as tenants in common with B, who owns a 99% interest.   Either A or B can file a partition since they are co-owners. The percentage of co-ownership is irrelevant.  
A, an individual, and B, as Trustee of the John Doe Trust, tenants in common  Partition is available regardless of who may be the beneficiary under the John Doe Trust. 
A, an individual, and B, as Trustee of a trust that was not properly formed, tenants in common  Partition is available regardless of whether a co-owner, like a trust, has issues with formation, legal effectiveness, or other problems with its internal affairs. 
A, an individual, and B Corp., a corporation, tenants in common  Partition is available, even when one of the co-owners is a corporation.  
A, an individual, and B Corp., a corporation, tenants in common, where A is the President of B Corp.  Partition is available, even when one of the co-owners is a corporation, and regardless of whether the same person could act on behalf of both co-owners.  
A, an individual, and B Corp., a corporation, tenants in common, where A is the sole shareholder of B Corp.  Partition is available, even when one of the co-owners is a corporation, and regardless of whether the same person holds the ultimate beneficial interest on behalf of both co-owners. Perhaps the corporation owes offsets to the individual, or perhaps the corporation has debts that must be paid. 
A, an individual, and B, who is deceased, tenants in common  Even if A could file a probate action on behalf of B, A might choose the easier remedy of partition. Partition law even provides a specific  manner of serving a deceased co-owner. 
A, an individual, and B, a suspended corporation, tenants in common  A is entitled to file a partition, regardless of whether B is suspended. The law provides that B would not be entitled to file or defend a lawsuit while B’s taxes remain unpaid. Cal. Rev & Tax Code § 23301. 
A, individually, and B, as trustee of the B Revocable Living Trust, tenants in common. B is a nutcase who never pays the mortgage, is being sued by 5 different people, threatens everyone who comes on the property, and threatens to disinherit A if A files a partition.  Either A or B can file a partition since they are co-owners. None of the facts mentioned in this example change that result. The internal affairs of a co-owner make no difference on whether there is a co-ownership of the property, which is effectively all that is required for a partition. 
A, individually, and A, as Trustee of the XYZ Irrevocable Trust.  Despite A holding the legal power on behalf of himself or herself and holding that power on behalf of a trust, there may be reasons that A, as trustee of an irrevocable trust, may seek the protections of a court to ensure that the property is fairly divided. For example, perhaps A granted one-half of the property to an irrevocable trust, but made improvements to the property that A seeks to have adjudicated as an offset in favor of A individually. Or, perhaps A wishes to buyout the interest of the XYZ Irrevocable Trust through a partition by appraisal with a court order to provide protections from A being sued by the beneficiaries of the XYZ Irrevocable Trust. This issue might arise where A formed the XYZ Irrevocable Trust, but later decided it was a bad idea.  
A and B, who is the father of A, tenants in common, but then B passes away in the middle of the partition case, thereby making the ownership A and the estate of B.  The partition can continue. A personal representative must be appointed on behalf of the Estate of B, even if A would be the only beneficiary of the Estate of B, since someone must still sign on the deed on behalf of the Estate of B as the co-owner of the property. 
A, individually, and B as Successor Trustee of the John Doe Trust, which leaves the John Doe Trust’s interest in the property to A. However, B refuses to transfer the John Doe Trust’s interest in the property to A or is otherwise uncooperative.  A might want to speed up the administration of the John Doe Trust by filing a partition action. While A might have the right to file an action in a trust (probate) court to accomplish a similar goal, the laws and speed of a partition may be favorable.  
A is the sole owner of the property. However, B claims that B paid for one-half of the property, but that A refuses to transfer one-half of the property to B. To the extent B was a co-owner, B would want the property sold.  A partition action can encompass a claim that a co-owner is not of the deed. Courts and attorneys may refer to this a quiet title action, a constructive trust, a resulting trust, equitable title, equitable ownership, or otherwise. The court in a partition action can both declare B to be a co-owner of the property and order the property to be sold. This speeds up the process of B being paid for their equity in the property. 
A and B own a property where B leases the property to a business owned by B.  A partition action can be filed by A, despite B leasing the property to B’s business. See Buhrmeister v. Buhrmeister (1909) 10 Cal.App. 392.
A and B own a property where B leases the property to a third party.  A partition action can be filed by A, despite B leasing the co-owned property.

 

Examples of Partitions that CAN be Filed, Even if There Are Other Remedies

Note that there are times where a partition is available, even if there are other remedies under the law.

For example, perhaps A and a corporation entirely owned by A co-own a property. Under California law, when a corporation is dissolved, the property would normally be distributed to the owner (shareholder for a corporation; member for an LLC). However, there may be reasons while a partition is preferred. For example, perhaps the corporation has creditors, and A seeks a court order that A indeed had rights to offsets against the interests of the corporate co-owner, meaning A will get more than their fractional ownership interest in the proceeds

Irrelevant Facts Do Not Change the Right to Partition

The examples above illustrate a few general principles as to when a partition action can be filed.

First, the manner of co-ownership doesn’t matter, meaning that tenants in common and joint tenants can file a partition action.

Second, it also doesn’t matter the percentage of ownership by the filing co-owner, meaning that the owner of just 1% of a property can file a partition.

Third, the type of property or activity occurring on the property doesn’t matter. It is irrelevant whether the property is a residence, a farm, a commercial building or otherwise. All of these properties can be partitioned.

Fourth, it doesn’t matter what happens to your co-owner. Your co-owner may be dead, a suspended corporation, a trust in which you are the beneficiary, or otherwise. All that matters is that there are multiple co-owners of the property. These matters should not stop the partition action from proceeding.

Fifth, the occupation of the property doesn’t matter. Regardless of whether your co-owner rented out the property, occupies it themselves, runs a business at the property, or the property suffers from some serious detriment, each co-owner has the right to a partition.

Finally and most importantly, the court in a partition will not weigh whether or not the partition seems “fair” for the parties. Rather, “if the party seeking partition is shown to be a tenant in common [or joint tenant],…the right to partition is absolute, and cannot be denied…because of any supposed difficulty….” [2]Priddel v. Shankie (1945) 69 Cal.App. 2d 319, 325.

Partition Solves Many Co-Ownership Issues

Indeed, case law has made clear two main reasons that co-owners must file partition actions: “Partition is a remedy much favored by the law. The original purpose of partition was to permit cotenants to avoid the inconvenience and dissension arising from sharing joint possession of land. An additional reason to favor partition is the policy of facilitating transmission of title, thereby avoiding unreasonable restraints on the use and enjoyment of property.” [3]LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, 493.

When the courts refer to “the inconvenience and dissension arising from sharing joint possession of land,” this includes that the are few buyers of a fractional interest in property. Indeed, on the open market, few people will pay 50% of the value of a property to become a 50% co-owner with a stranger. Rather, they will demand a discount because no co-owner has complete control of co-owned property. This may be seen as a type of minority discount. Indeed, even the owner of a 99% interest in real property cannot demand a control premium since the law of co-ownership does not dictate any form of majority control.

When a court note that another reason for a “partition is the policy of facilitating transmission of title, thereby avoiding unreasonable restraints on the use and enjoyment of property,” this refers to the fact that a title insurance company will not issue a title insurance policy in the sale of the entire property unless all owners sign on the deed. [4]LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, 493. This means that an uncooperative co-owner can try to use their refusal to sign the deed as leverage to extract an unfair advantage against their co-owner. The court process of a partition allows the judge’s signature to replace that of the uncooperative co-owner to ensure that every co-owner has the ability to exit the co-ownership without the permission of their co-owner(s).

A Partition CANNOT be Filed for Divorcing Couples in California

There is only one statutory exception in which co-owners cannot file a partition, but instead must file their action in divorce court (family court). Specifically, Code of Civil Procedure 872.210(b) provides that “an action between spouses or putative spouses for partition of their community or quasi-community property or their quasi-marital interest in property may not be commenced or maintained under this title.” Below are examples of cases in which a partition action cannot be filed.

Co-Ownership in Which a Partition Action CANNOT be Filed  Lesson from Partition Law
A and B, husband and wife as tenants in common  Partition is not available since A and B presumably hold the property as community property. The property must be divided in a divorce, legal separation or in some other manner, but not in a partition action.   
A and B, husband and wife as joint tenants. Both A and B are alive.  Partition is not available since A and B presumably hold the property as community property. The property must be divided in a divorce, legal separation or in some other manner, but not in a partition action. This rule does not change regardless of whether they hold title as tenants in common or as joint tenants. 

A Partition CANNOT be Filed Because One Party is on the Mortgage, But Not on Title

Another rare example of a case in which a partition cannot be filed is when a party, for whatever reason is only on the mortgage, but not an owner of the property.

For example: A is the sole owner of record for the property. However, A and B are on the mortgage, and B wants to remove themselves from the mortgage on the property. Most likely B was a co-owner of the property when it was acquired, but signed a deed transferring B’s interest in the property to A. Perhaps B just thought of themselves as a co-signer for the mortgage. Perhaps B even made all of the mortgage payments. Unfortunately, the partition statutes do not provide for a remedy unless B claims to be a co-owner of the property, which will be hard given the presumption that record title reflects the ownership of the property. 

A Partition Cannot Be Filed for Parties Who Hope to Co-Own Property

The tricky situations arise when parties expect and hope to become co-owners, but that right has not yet ripened through a recorded deed.

Do Trust Beneficiaries and Heirs in Probate Have a Right to Partition Before the Deed of Co-Ownership is Recorded?

One of the most common questions we are asked is as follows: A is the successor trustee of the XYZ Trust, which owns 100% of the property. The beneficiaries of the XYZ Trust are B and C. However, A is taking what seems like forever to administer the XYZ Trust.

Can anyone file a partition? The answer is probably that neither A, B, nor C can file for a partition action. That is because none of them are co-owners. B and C merely hope to obtain a co-ownership interest in the Property. This issue is appropriate for a probate issue where B and C may request that A be removed as the successor trustee for failing to do his or her job. Note that there may be differing opinions as to the effect of Code of Civil Procedure Section 873.830.

Do Shareholders of a Corporation or Members of an LLC Have a Right to Partition Before the Deed of Co-Ownership is Recorded?

The same issue arises when a 50% shareholder of a corporation or 50% member of an LLC expects to own real property owned by the entity. While those shareholders or members may hope to receive a 50% interest in the real estate owned by those entities upon dissolution, the remedy of those shareholders or members lies within the laws governing corporations and limited liability companies.

While the LLC is active: “A member in a limited liability company…holds no direct ownership interest in the company’s specific property.”[5]15A Cal. Jur. 3d Corporations § 1038. California Jurisprudence cites Swart Enterprises, Inc. v. Franchise Tax Bd., 7 Cal. App. 5th 497, 510, 212 Cal. Rptr. 3d 670, 679 (2017) (citing to former Corp. … Continue reading Indeed, “under California law a limited liability company is a separate and distinct legal entity from its owners or members. Consequently, limited liability company members have no interest in the company’s assets.” In re Schaefers, 623 B.R. 777, 783 (B.A.P. 9th Cir. 2020). However, upon dissolution, an LLC can distribute its assets “[t]o members in the proportions in which those members share in distributions.” Cal. Corp. Code § 17707.05(a)(3).

As for a corporation: “The owner of the shares of stock in a company is not the owner of the corporation’s property. He has a right to his share in the earnings of the corporation, as they may be declared in dividends, arising from the use of all its property. In the dissolution of the corporation he may take his proportionate share in what is left, after all the debts of the corporation have been paid and the assets are divided in accordance with the law of its creation. But he does not own the corporate property.” Miller v. McColgan (1941) 17 Cal. 2d 432, 436. Imagine you own shares of Microsoft. This does not mean that you (or Bill Gates or any other shareholder of Microsoft) own a desk in a Microsoft office. The desk is corporate property and owned by the corporation, Microsoft.

Partnership Property Can be Partitioned

“To the extent that the court determines that the provisions of the partition statutes are a suitable remedy, such provisions may be applied in a proceeding for partnership accounting and dissolution, or in an action for partition of partnership property, where the rights of unsecured creditors of the partnership will not be prejudiced. (CCP 872.730) Accordingly, property of a partnership may be partitioned in a partnership accounting even though the property is held in the name of one partner. (Brown v. Fairbanks, 121 Cal. App. 2d 432, 263 P.2d 355 (4th Dist. 1953).)” 48 Cal. Jur. 3d Partition § 28.

Rare Examples in Which No Partition is Needed

Sometimes, the ownership of the property may reflect that there are multiple owners of a property, but no partition is needed to solve the co-ownership issues. These examples are fairly rare. If you’re reading this article, chances are, you have a co-ownership issue that cannot be solved with a magic wand.

Co-Ownership in Which Partition is not Necessary Lesson from Partition Law
A and B, as joint tenants, but B has died.  There is no reason to file a partition action. Rather, A can likely record with the county recorder an affidavit of death of joint tenant attaching a death certificate of B, which tells the public that A is the sole survivor of the joint tenancy, meaning that A is the sole owner of the property. 
A and B, husband and wife as joint tenants, but B has died.  There is no reason to file a partition action. Rather, A can likely record with the county recorder an affidavit of death of joint tenant attaching a death certificate of B, which tells the public that A is the sole survivor of the joint tenancy, meaning that A is the sole owner of the property.  The fact that A and B were once married, and that the property would have been community property had the parties divorced before B died, does not change this result.  
A, individually, and A as Successor Trustee of the John Doe Trust, which leaves the John Doe Trust’s interest in the property to A.  There is probably no reason to file a partition action. Instead, A as Successor Trustee of the John Doe Trust can transfer the partial interest of the John Doe Trust to A, individually. Note that there may be property tax or income tax consequences to administration of a trust and recording of a deed. Contact an experienced tax attorney before proceeding under this scenario. 

Contact an Experienced Partition Attorney in California

If you want to end your co-ownership relationship, but your co-owner won’t agree, a partition action is your only option. Our experienced partition lawyers have years of experience ending co-ownership disputes and can help you unlock the equity in your property. For a free, 15 minute consultation with an experienced partition attorney at Talkov Law, call (844) 4-TALKOV (825568) or fill out a contact form online.

References

References
1

California Code of Civil Procedure 872.210 describes who is authorized to commence a partition action as:

(1) A coowner of personal property.

(2) An owner of an estate of inheritance, an estate for life, or an estate for years in real property where such property or estate therein is owned by several persons concurrently or in successive estates.

2 Priddel v. Shankie (1945) 69 Cal.App. 2d 319, 325.
3, 4 LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, 493.
5 15A Cal. Jur. 3d Corporations § 1038. California Jurisprudence cites Swart Enterprises, Inc. v. Franchise Tax Bd., 7 Cal. App. 5th 497, 510, 212 Cal. Rptr. 3d 670, 679 (2017) (citing to former Corp. Code, former § 17300 in finding that “members hold no direct ownership interest in the company’s specific property”); see Kwok v. Transnation Title Ins. Co., 170 Cal. App. 4th 1562, 1570–71, 89 Cal. Rptr. 3d 141, 147 (2009) (“As members of the LLC, appellants never held an ownership interest in the property to which the LLC held title”).


Can the Other Parent Move if We Have 50/50 Custody?

The basic fact to keep in mind is that California family courts cannot prevent a parent from moving away on their own. Under the United States Constitution, all adults are permitted to freely travel and move about the country, even if they share joint custody of children. As a result, family courts cannot resolve a ... Read...

How Do You Handle Moving When There Are Kids Involved and You Share 5050 CustodyHow Do You Handle Moving When There Are Kids Involved and You Share 5050 Custody

The basic fact to keep in mind is that California family courts cannot prevent a parent from moving away on their own. Under the United States Constitution, all adults are permitted to freely travel and move about the country, even if they share joint custody of children. As a result, family courts cannot resolve a move-away dispute by restraining a parent from moving.

The family court can, however, make custody decisions about a child based on the assumption that a parent is going to move. (Marriage of Paillier (2006) 144 Cal. App. 4th 461, 464.) The court cannot restrict the right of the parent to move, but makes a determination on whether they may move the child. Custodial parents only have a presumptive right to relocate with their children – this right is not absolute, even if they have sole custody.

Can One Parent Just Decide to Move and Then Take the Kids?

Generally, a parent can move with a child so long as the relocation doesn’t interfere with the current custody arrangement. In addition, the move must not be detrimental to the child’s rights or best interests. When it comes to moving away with a child, parents who share joint custody are restricted by the terms of their custody order.

How Do You Handle Moving When There Are Kids Involved and You Share 50/50 Custody?

If the parents currently share joint physical custody, they enter the courtroom on a level playing field. In such a case, the court must approach the move-away case de novo. In other words, the court essentially decides from scratch what custody arrangement is in the child’s best interest (see California Family Code 3011, 3020, 3040).

Can the Other Parent Move if We Have 5050 Custody

California courts will consider your custody arrangement anew based on the circumstances of your move and the best interests of your children. For this exercise, the courts will analyze a new parenting schedule assuming that the parent moves.

In other words, assuming that the parent moves, what custody schedule would be in the best interests of the children, and what would be best for the child in terms of which parent they live with.

When deciding a move-away case, California family courts will consider a litany of things, including:

  • How far you’re moving away
  • The reasons you’re moving
  • Whether the move will present a detriment or benefit to your children
  • Whether the move is ultimately in your children’s best interests
  • The age of your children and their relationship with each parent
  • The children’s interest in continuity and stability in their home life
  • The parents’ ability to cooperate and communicate effectively
  • How custody is currently split between the parents
  • The preference of the children if they are mature enough for such an inquiry to be appropriate

Whether you are the moving or non-moving parent, both parties come to a “level playing field” at the child custody hearing. Here, you get a chance to negotiate a new custody arrangement.

Move away cases are very complex legal matters. They can be particularly frustrating, because the law can be very confusing and move-away orders can be difficult to obtain if both parents want to be involved in their child’s life.

If you have your sights set on a move with your children, you have your work cut out for you, but having a knowledgeable California child custody attorney in your corner can greatly improve your chances of obtaining the result that you seek.

Call the move away and relocation attorneys Talkov Law at (844) 4-TALKOV (825568) or contact us online for a free consultation about your case. Our attorneys have been able to help parents come to child custody agreements when possible, and litigated custody cases when necessary throughout the State of California.

Our knowledgeable family law attorney, Colleen Talkov, can also help if you have questions about any of the following:


Supervised Visitation FAQs

Supervised Visitation FAQs What is Supervised Visitation? The public policy of the State of California is to protect the best interests of children whose parents have a custody or visitation case within the family courts. Custodial stability, continuity, and a loving parent-child relationship have been classified as the most important criteria for determining a child’s ... Read...

Supervised Visitation California CustodySupervised Visitation California Custody

Supervised Visitation FAQs

What is Supervised Visitation?

The public policy of the State of California is to protect the best interests of children whose parents have a custody or visitation case within the family courts. Custodial stability, continuity, and a loving parent-child relationship have been classified as the most important criteria for determining a child’s best interest.

Sometimes, based on issues of safety and protection, a California family court will order that a child only have contact with a parent when a neutral third person is present during the visitation. This type of third-person visitation arrangement is called “supervised visitation” or “monitored visitation.”

The court order will specify the time and duration of the visits. Sometimes, the court order will also specify who will provide the supervised visitation services and where the visits will take place.

When Does the Court Order Supervised Visitation?

California child custody laws emphasize the importance of a child maintaining frequent and continuing contact with both parents, but that rule is not absolute. The exception to the rule is when such a custody arrangement is not consistent with the child’s best interest and where there may be conditions that make visitation uncomfortable or even unsafe for a child.

In those scenarios, supervised visitation may be an appropriate option. Family Code § 3200.5(b) requires the California family court to determine whether supervised visitation is necessary or not. Supervised visitation is typically ordered by the court on order to give the non-custodial parent the chance to work through their issues and enhance the parent-child relationship. If a child’s safety or well-being are at issue, there are a number of reasons why the court may order supervised visitation, including:

  • When there are allegations of domestic violence, child abuse and neglect, or substance abuse;
  • To give the visiting parent a chance to address specific issues;
  • To help reintroduce a parent and a child after a long absence;
  • To help introduce a parent and a child when there has been no existing relationship between them;
  • When there are parenting concerns or mental illness; or
  • When there is a parental threat of abduction.

Parents may be able to establish a parenting plan and agree on the supervised visitation provider. However, if parents disagree on a parenting plan or provider and depending on the nature of the situation, the court will specify the time and duration of the visits, and may also specify where the visits are to take place and who is to supervise the visits.

California family courts have wide discretion to consider any factor that may be relevant to visitation if it affects the health, safety, and welfare of the child. Thus, if supervised visitation is ordered, keep in mind it will be because the judge deems it to be in the best interest of the child.

The court can use the visits to gauge how likely the non-custodial parent is to cooperate with the custodial parent to meet their child’s needs, how likely the non-custodial parent is to follow court orders, and how beneficial it is to the child to have a relationship with the non-custodial parent. On the flip side, if the non-custodial parent doesn’t take the order seriously or fails to exercise their visits, the court will notice that, too.

Who Can Supervise Visitation? [Professional Supervisors vs. Non-professional Supervisors]

There are two types of supervised visitation providers under Family Code § 3200.5:

  1. Professional Visitation Providers – any person who is paid for providing supervised visitation services, or an independent contractor, employee, intern, or volunteer operating independently or through a supervised visitation center or agency.
  2. Non-Professional Supervisors – any person who is not paid for providing supervised visitation services. Typically, a non-professional provider is a family member, friend, or acquaintance.

While choosing a non-professional supervisor may be an attractive option in order to save on costs and have a familiar face at the visits, selecting a non-professional provider frequently does not work out for various reasons.

First, it can be difficult for parents to find a neutral supervisor on whom they both agree. Second, although friends and relatives may be quick to agree to provide supervision, they also may be unable to maintain their regular supervising commitment or find it difficult to refrain from taking sides. This usually leads to one or both parents refusing to continue utilizing the supervisor. Lastly, having a friend, relative, or acquaintance as a supervisor may detract from the visiting parent and child’s time together because the child or visiting parent may be tempted to spend time interacting with the familiar supervisor, rather than focusing only on the visits.

A professional provider must satisfy more stringent standards for education and training requirements, be well-trained in supervising techniques, and have experience in facilitating safe and supportive visiting environments. If there are concerns about domestic violence, child abuse and neglect, sexual abuse, or abduction, parents may benefit from choosing a professional provider who has been trained in those issues and clearly understands the specialized knowledge and skills required for those types of cases and concerns.

What Does a Visitation Monitor Have to Do?

The supervisor is there to make every effort to keep the child safe and support the child in enjoying the visit with the supervised parent. The provider must be present at all times during the visit, listen to what is being said, and pay close attention to the child’s behavior. If necessary, the provider may interrupt or end a visit.

Whether a paid professional, family member or friend, the provider’s job is to make sure that the children involved in the visits are safe and free from any unnecessary stress.

Supervisors should follow three basic rules:

  1. Never leave the child and parent alone. Keep the supervised child(ren) in your line of sight and range of hearing at all times during the visit.
  2. Interrupt inappropriate talk. Step in if the parent discusses inappropriate topics such as the court case or the other parent, or makes false promises such as, “Soon you will be allowed to live with me.”
  3. Keep records. Keep a log of visits you supervise and take notes summarizing each visit. Note any out-of-the ordinary events, such as if the parent makes in appropriate conversation or the child is injured during the visit.

How Should a Visiting Parent Deal With Supervised Visitation?

Parents who have been ordered to participate in supervised visitation as part of a child custody matter often experience a wide range of emotions. The visiting parent may feel like they are being punished and it may be uncomfortable trying to engage with their child while someone else is just sitting there watching. They may feel angry because they believe that the other parent manipulated the situation and because they believe that they deserve more than what they got.

However, the visiting parent’s patience and commitment to the child are critical during this time.

If you are a visiting parent, do your best to focus on your relationship with your child and try not to displace any anger against the other parent, the courts, or the fact that supervised visitation was ordered. Here are some tips to make the most of a supervised visitation arrangement:

  • Arrive on time and keep your appointments. Factor in commute time and make sure you have enough time before each visit to arrive on time. The custodial parent will probably tell the child about the visit and the child may be looking forward to seeing you. Flaking on plans will erode your child’s trust.
  • Get your head in the game. Before each visitation, take a few minutes before your parenting time to clear your mind and get ready to focus on your child. It may sound easy enough, but it’s important to not let outside worries or personal issues impact your visit. Listening to your favorite music, meditating, or using a calming app on your phone can help get you focused for your parenting time.
  • Be prepared. Bring sunscreen and a hat for the child if you will be outside. If you plan to order food, ask the other parent what the child likes and whether he or she has an allergy. Before the visit, ask the other parent what size diapers the child needs, what toys they like, what time they usually eat dinner, whether they will eat before the visit, etc. If the visit is not at a facility, make sure you bring an age-appropriate activity such as a coloring book or board game.
  • Be positive. If you ignore the awkwardness, it will be easier for your child to ignore it, too. Prepare to talk about light, kid-friendly topics.
  • Avoid discussing the court case or terms of the visit with your child.
  • Avoid quizzing your child about the other parent’s activities and relationships.
  • Play with the child. Don’t just watch. Young children can be difficult to talk to when distracted. Show them you care by connecting on their level.
  • Avoid making your child a messenger to the other parent.
  • Talk about the child’s interests. Ask your child about what they are doing in school, their friends, their hobbies, their favorite TV shows, music, etc.
  • Say brief and warm good-byes to your child when the visit is over. Tell your child that you look forward to seeing them again.
  • Give yourself breathing time afterward. If possible, try not to schedule any appointments or meetings immediately after your visit. Knowing that you have another commitment right after your visit may serve as a distraction during your parenting time and may make you feel rushed and stressed out during the visit.
  • Keep a journal to reflect on your visits.

How Should a Custodial Parent Deal With Supervised Visitation?

Supervised visitation may also be a stressful and challenging situation for the custodial parent. If you are the custodial parent, you may feel resentful. You may feel like you do all the parenting of the children and like the other parent doesn’t deserve to even see the kids. You may even feel like the visits are harmful to your children because the other parent is too unfit to adequately meet their needs.

These concerns are completely understandable, however, it is equally critical for the custodial parent to demonstrate from the outset the willingness and ability to cooperate in parenting. Here are some tips to assist custodial parents in the supervised visitation process:

  • Explain to your child where and when the visits will take place. Be sure to discuss the visits with your child beforehand and mark the date on a calendar that your child has easy access to. This will help keep your child aware of when they see the other parent next and how frequently.
  • Be prepared. Have your child ready with anything they will need during the visits.
  • Arrive on time to drop off and pick up your child.
  • Reassure your child that you support them in having a pleasant visit. Encourage your child to look forward to the visits, even if either you or your child have negative feelings about the visits. Always support your child in their efforts to build a relationship with the other parent.
  • Be cooperative. Inform the other parent that you are sending the child with homework if they have an assignment. Tell the other parent about the child’s likes and dislikes, even if the other parent doesn’t ask. Helping prepare the other parent will ensure your child has a good time.
  • Avoid making your child messengers to the other parent.
  • Avoid quizzing your child about the visit. Do not question or interview them about the visit or the other parent. Instead, allow your child to share as much information as they want.

How Can I Find a Supervised Visitation Location?

Contact or check with your local Family Court Service office in your local court. Generally, each county Family Court Services office has a list of providers in your area. Click here to find your local Family Court Services office.

What Can a Non-custodial Parent Do to Get Unsupervised Visitation?

Although supervised visitation can be a very difficult situation for both parents and the child, fortunately, supervised visitation is usually only temporary and allows parents to maintain contact with their children despite the challenging circumstances.

Once the judge orders supervised visitation, the order generally remains in place until a parent can demonstrate that there has been a change in circumstances. A change in circumstances can include one parent’s decision to move, a parent’s successful completion of rehabilitation or counseling, or other positive changes that impact a parent’s suitability. The parent who wishes to change the supervised visitation order must return to court and request that the order is modified to reflect the change in circumstances.

Courts often condition supervised visitation on some other requirement. For example, commonly supervised visits are conditioned on the non-custodial parent’s taking certain steps toward self-betterment – for example, entering rehab, undergoing a domestic violence assessment, attending anger management or co-parenting classes, and attending reunification therapy with the child. Supervision may be lifted or adjusted if the visits go well for a certain period – for example, six months.

Court-ordered supervised visitation is often a steppingstone toward more substantial, unsupervised visits between the child and the noncustodial parent. If both parents and the supervisor take the visits seriously and keep the focus on the health and happiness of the children, it will demonstrate that they are able to co-parent and the court will look more favorably on both parents.

Contact a California Child Custody Lawyer Today

The unprepared and those who try to handle their own contested child custody cases face a difficult time. It’s not a task you can undertake alone.

Parents can rely on the experience of our child custody attorneys in California in obtaining child custody orders, stipulated custody agreements, and judgments. Contact Talkov Law in California at (844) 4-TALKOV (825568).

Our knowledgeable family law attorney, Colleen Talkov, can also help if you have questions about any of the following:


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