Articles Posted in Family Law

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The Court of Appeal reversed a child custody order awarding child custody jointly to mother and father. The court explained that Family Code section 3044 requires family courts to make specific findings, in writing or on the record, about seven factors, including whether the perpetrator has successfully completed a batterer's treatment program. In this case, conduct of counsel -- repeatedly interrupting -- terminated the hearing while the family court was in the middle of stating its reasons. Therefore, the court remanded for the family court to hold a new hearing and to provide the statement of specific reasons for its decision. View "Jaime G. v. H.L." on Justia Law

Posted in: Family Law

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H.S. and James E. appealed an order terminating parental rights to their son, Collin E. In July 2015, the San Diego County Health and Human Services Agency (Agency) filed a petition under Welfare and Institutions Code section 300 (b) on behalf of the 13-month-old Collin. The petition alleged Collin's mother, H.S., had left him unattended in her car while she was under the influence of a prescription narcotic medication. Police officers arrested H.S. for willful cruelty to a child and being under the influence. H.S. told officers she had taken 50 mg of morphine prescribed for pain caused by a brain tumor. The Agency alleged Collin had suffered, or was at substantial risk of suffering, serious physical harm or illness due to his parents' inability to provide adequate care. James (father) and H.S. argued there was no substantial evidence to support the Indian Child Welfare Act finding that continued custody of the child by the parents was likely to result in serious emotional or physical damage to the child. They also argued the juvenile court erred when it determined the beneficial parent-child relationship exception did not apply and terminated parental rights. Finding no reversible error, the Court of Appeal affirmed. View "In re Collin E." on Justia Law

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In an issue of first impression, the Court of Appeals addressed whether Family Code section 4504(b) required derivative benefits received by the child of a disabled parent to be credited against a noncustodial obligor's child support. In this case, the Social Security Administration (SSA) took six years to approve Father's application. In 2015, it made a lump-sum payment for past-due derivative benefits to custodial parent Y.H. (Mother), as Daughter's representative payee. In the intervening six years, Father had continued to pay child support and was not in arrears. The Court of Appeals held section 4504 (b) indeed permitted retroactive child support credit from Daughter's lump-sum payment where there was no child support arrearage. View "Y.H. v. M.H." on Justia Law

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Husband appealed an order setting aside a default judgment that incorporated a marital settlement agreement (MSA). He contended the trial court erred by considering evidence not presented, submitted, or admitted at the hearing, in violation of Family Code section 217. He further argued the court erroneously relied upon an incorrect legal standard when it found the failure to complete preliminary and final disclosures provided sufficient grounds to vacate the judgment. The Court of Appeal affirmed, finding that if husband disagreed with the court’s assessment, he should have stated his position on the record and requested the opportunity to present live testimony as authorized by section 217. Having failed to do so, the trial court did not err in allowing wife to “‘rest on the pleadings’” instead of presenting evidence. In deciding to set aside the judgment, the trial court found that husband failed to complete the preliminary and final disclosures, as evidenced by : (1) there were no supporting documents attached to the preliminary disclosure; (2) the stipulation was prepared by husband’s attorney; (3) wife never actually exchanged any documents with husband; (4) husband was unable to produce copies of the documents that support the preliminary disclosure; and (5) husband has over $400,000 in cash and checking accounts that was not disclosed in his income and expense declaration. Here, husband prepared the necessary preliminary declarations of disclosure; however, he failed to provide the supporting documentation. Wife never completed or exchanged any declarations of disclosure, despite executing the stipulation stating that she had done so. Given the lack of compliance with the statutory requirements, the stipulation was insufficient to act as a waiver of the final disclosure. The trial court therefore correctly concluded that there had been a mistake of fact by the parties regarding whether the statutory requirements had been satisfied, and properly vacated the judgment on that basis. View "In re Marriage of Binette" on Justia Law

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Beginning in December 2006, plaintiffs made several loans to defendant Lee, who is You’s father. Lee defaulted. In July 2013, a judgment was entered against Lee for $1,143,576. No part of the debt has been paid. In October 2016, plaintiffs filed a complaint against Lee and You, seeking to set aside allegedly fraudulent conveyances and an accounting, claiming that in 2013, Lee paid $104,850 to Northeastern University for You’s tuition and other expenses, knowing that he had incurred, or would incur, debts beyond his ability to pay, intending to “hinder, delay, or defraud” his creditors, including plaintiffs. You contended Lee’s transfers were not fraudulent because they did not lack consideration and that You was not a beneficiary of the transfer, having received only the intangible benefits of an education. The court of appeal affirmed the dismissal of the complaint. Noting that there is no authority on whether creditors may attack college tuition payments as fraudulent transfers under the Uniform Voidable Transactions Act (Civ. Code 3439) the court reasoned that a parent can reasonably assume that paying for a child to obtain a degree will enhance the child's financial well-being which will, in turn, confer an economic benefit on the parent. View "Lo v. Lee" on Justia Law

Posted in: Contracts, Family Law

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Mother made no progress on her case plan for a year, then, as she was about to lose her parental rights, she began eagerly complying with the plan. The twist in this case is that the child, Sofia, was 14 years old, and by the time mother decided to comply with the plan, Sofia was depressed and too hurt to want to spend any time with her. So she refused visits. At the 12-month review hearing, mother complained that she had been prevented from visiting Sofia. The court left the visitation order in place, and even authorized visitation in a therapeutic setting, but terminated reunification services and set a selection and implementation hearing under Welfare and Institutions Code section 366.26 (.26 hearing). Sofia continued refusing visits and threatened to run away from therapy sessions if she were pressured. At the .26 hearing mother filed a section 388 modification petition, seeking to reinstate services, arguing she had been denied the ability to establish the “beneficial relationship exception” to adoption. The court denied the petition, terminated parental rights, and selected adoption as a permanent plan. On appeal, mother contended Sofia’s refusal to visit amounted to a failure by the court to enforce its order. The Court of Appeal disagreed: the trial court’s visitation order was appropriate, and it granted every visitation accommodation mother requested. "The fact that no one was able to persuade Sofia to visit her mother does not amount to an error by the court. Accordingly, we affirm." View "In re Sofia M." on Justia Law

Posted in: Family Law

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Fourteen-year-old E.A. and her eleven-year old sister, M.A. (together minors or children) had been living in what the San Diego County Health and Human Services Agency (Agency) described as "deplorable" conditions. Minors, both United States citizens, were living with their parents in Tijuana in an abandoned home with no electricity, no potable water, and with cockroaches crawling near minors' bed. The children had not been to school for over a year. They looked anorexic because J.A. (Mother) and Z.A. (Father) (together parents) fed them only one meal a day. When ruling in dependency proceedings, "'the welfare of the minor is the paramount concern of the court.'" At the time of the dispositive hearing in this case, there was no evidence that the minors' living conditions had changed. However, misinterpreting Welfare and Institutions Code section 300(g), and misapplying Allen M. v. Superior Court (1992) 6 Cal.App.4th 1069, the juvenile court dismissed the dependency petitions. The minors appealed. The Agency conceded court erred, but claimed the Court of Appeal should affirm because the errors were harmless. The Court of Appeal concluded the court's errors were prejudicial and, therefore, reversed with directions to deny the Agency's motion to dismiss the petitions. View "In re E.A." on Justia Law

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C.T. and D.A. appealed a juvenile court order terminating C.T.'s parental rights to her minor daughter, C.A., and earlier orders finding the Indian Child Welfare Act (ICWA) did not apply to C.A.'s presumed father, D.A., or C.A.'s biological father, D.R. The Court of Appeal rejected these challenges and affirmed the orders. View "In re C.A." on Justia Law

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Wife Rachelle Spector filed a request for a temporary order for spousal support and professional fees. The parties filed their respective briefs with supporting declarations and evidence in advance of a February 17, 2017, hearing. The court issued its ruling on February 21, and served the order on the parties via e-mail the next day. The court ordered, among other things, husband to pay wife temporary spousal support and certain professional fees. The first temporary spousal support payment was due on March 1, 2017. Shortly after receiving the 2/21 Order on February 22, husband Phillip Spector sent an email to the judge with a copy to wife, stating “there appears to be an error in your arithmetic” regarding the monthly temporary spousal support figure. Husband, wife, and the judge engaged in several e-mail exchanges regarding the calculations and the effect of the monetary awards and requirements in the 2/21 Order. Husband suggested “that the court relabel it’s [sic] ruling to instead be a Tentative Ruling and let us each argue before making it final.” On February 23, the judge responded, “[q]uite frankly I have the authority to modify the orders and am considering doing so.” She further stated “[w]e can call the notice and orders tentative,” and invited the parties to argue the issues but indicated she “prefer[red] a 5 page written argument from each of [them].” The issue this case presented for the Court of Appeal’s review was whether the trial court had the inherent authority to reconsider its own orders and make them effective retroactively. Wife argued the trial court was precluded from doing so pursuant to Family Code sections 3603, 3651(c), and 3653(a), and the various cases interpreting those statutes. The Court of Appeal concluded the court had inherent authority to reconsider its prior order and to apply its modified decision retroactively. Finding no merit in wife’s argument that the court violated her due process rights when it exercised this authority, the appellate court affirmed. View "Marriage of Spector" on Justia Law

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The Court of Appeal held that substantial evidence supported the trial court's determination that wife had not intentionally misrepresented her intention to be bound by the mahr agreement in order to induce husband to enter into the marriage. The trial court found that the parties had different interpretations of the mahr agreement, which they did not discuss with one another, and that husband made the assumption that wife shared his interpretation of the agreement. Therefore, the court held that the trial court properly found that husband failed to meet his burden to establish by clear and convincing evidence that wife fraudulently induced him to enter into the marriage. View "Turfe v. Turfe" on Justia Law

Posted in: Family Law