Mandatory Joinder vs Permissive Joinder – Compulsory vs Dismissive Joinder

The Truth News — Thu, 17 Nov 2022 02:08:23 +0000

Mandatory Joinder vs Permissive Joinder – Third Party Joinder

Third Party Joinder Compulsory Joinder vs Dismissive Joinder

Third Party Joinder

Third parties (anyone other than Husband and Wife) may be “joined” as parties to a divorce, legal separation or annulment case in San Diego. In general, joinder is permissible if any third person or entity has control over an interest which is a subject in the case. The issue of joinder often comes up in cases where a spouse’s interest in a state, city, or county retirement plan is in dispute. There are two theories under which a third party may be joined in a divorce case: permissive joinder and mandatory joinder.

Any court orders or judgments made in a dissolution case are not ordinarily binding on any third parties, companies or entities. However, it is often necessary to obtain cooperation of people and entities that are not otherwise involved in the dissolution case. This is done by filing a Motion for Joinder.

A Motion for Joinder is a request made to the court by which a party is asking that a person or entity be brought before the family law court and made to comply with its orders. Joinders are common where one or both of the parties have a pension or employment benefit plan. By joining the plan, the court can then order the plan to divide the monthly pensions and or retirement benefits by the employed spouse.

Joinders are also common where the spouses own real estate with other people. In these types of cases, all owners must be brought before the family law court, so they can be ordered to sign documents transferring title pursuant to the court order.

Mandatory Joinder

In a few cases, joinder of third parties may be mandatory if the court determines the third party is “indispensable” to the action. In a divorce case where custody and visitation of a minor child is in dispute, joinder of any person with physical custody or claiming custody or visitation rights is mandatory. Husband, Wife, or the third party claiming custody or visitation rights may petition the court for joinder. Additionally, where property division of an employee benefit plan is in dispute, the employee benefit plan must be joined in order for the court to issue an enforceable order against the plan. Different rules may apply to any Federal entities.

A mandatory joinder is when a court must order that a person be joined as a party to the proceeding if any person the court discovers has physical custody or claims custody or visitation respects to any minor child of the marriage, domestic partnership, or to any minor child of the relationship. Before ordering the joinder of a grandparent of a minor child in the proceeding under Family Code (FC) section 3104, the court must take the actions described in section 3104(a)

FC 3104(a) requires the court, if petitioned by a grandparent of a minor child, the court may grant visitation rights to the grandparent if the court does both of the following:

finds that there is a preexisting relationship between the grandparent and the grandchild that has engendered a bond such that visitation is in the best interest of the child.
balances the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority.

Permissive Joinder

In most cases, joinder of third parties is only permissive. In a permissive joinder case, the court has discretion to order joinder if it would be appropriate. Under the California Rules of Court, joinder would be appropriate if a third party is “indispensable” to the determination of an issue in the case or “necessary to the enforcement” of any court order rendered on that issue.

A permissive joinder is when a court determines that a person be joined as a party to the proceeding if the court finds that a party is indispensable for the court to make an order about that issue or is necessary to the enforcement of any judgment rendered on that issue.

The court must consider the following:

(a) whether resolving that issue will unduly delay the disposition of the proceeding;
(b) whether other parties would need to be joined to make an effective judgment between the parties;
(c) whether resolving that issue will confuse other issues in the proceeding; and
(d) whether the joinder of a party to determine the particular issue will complicate, delay, or otherwise interfere with the effective disposition of the proceeding.

For instance, if it were necessary for the court to order a third person or entity to take action in order to effectuate another order, joinder of that third person or entity would be advisable for enforcement purposes. In making this determination, the court will consider the following:

The impact of the issue on the entire case.
Whether joinder would delay the divorce unnecessarily.
Whether joinder would over complicate the proceeding or otherwise interfere with the case.

It is common in divorce cases for third parties to have an interest in community property. However, it is not mandatory for the trial court to join those parties. The standard for review in that instance is “abuse of discretion”.

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GRANDPARENT CASE LAW

Do Grandparents Have Visitation Rights? If there is an Established Relationship then Yes

Third “PRESUMED PARENT” Family Code 7612(C) – Requires Established Relationship Required

Cal State Bar PDF to read about Three Parent Law –
The State Bar of California family law news issue4 2017 vol. 39, no. 4.pdf

Distinguishing Request for Custody from Request for Visitation

Troxel v. Granville, 530 U.S. 57 (2000) – Grandparents – 14th Amendment

Child’s Best Interest in Custody Cases

9.32 Particular Rights – Fourteenth Amendment – Interference with Parent / Child Relationship

When is a Joinder in a Family Law Case Appropriate? – Reason for Joinder

Joinder In Family Law Cases – CRC Rule 5.24

GrandParents Rights To Visit
Family Law Packet OC Resource Center
Family Law Packet SB Resource Center

Motion to vacate an adverse judgment