Articles Posted in Family Law

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When a dependency court declares children dependent and removes them from a parent's custody, it is an abuse of discretion to order a reunification plan with which the parent indisputably cannot comply due to a language barrier. Determining that this case was not moot, the Court of Appeal held that the trial court abused its discretion in failing to order effective reunification services. The court reversed the portion of the disposition order requiring father to participate in a full alcohol treatment program with aftercare, a 12-step program with court card and sponsor, and parenting. The court remanded to the dependency court to reconsider its order terminating jurisdiction and for further proceedings. View "In re J.P." on Justia Law

Posted in: Family Law

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The sperm of Brian Cole was used to inseminate Mie Tsuchimoto, who gave birth to a boy (the child). When the child was six years old, the County of Orange filed a complaint to declare Cole to be the child’s father and to seek child support from Cole. Cole defended on the ground that under Family Code section 7613, he could not be the child’s parent. The trial court found that, notwithstanding section 7613: (1) there was a rebuttable presumption under section 7611(d) that Cole was the child’s parent because Cole had received the child into his home as his natural child and openly held out the child as his own; and (2) Cole had not rebutted that presumption. The Court of Appeal affirmed, finding the trial court’s findings regarding section 7611(d) were supported by substantial evidence. "The inability to establish parenthood under section 7613 does not preclude a finding of parenthood under section 7611(d)." View "County of Orange v. Cole" on Justia Law

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In an earlier action in which Florencia Garcia petitioned to dissolve her marriage to Juan Garcia (Dissolution Action), the family court found that Florencia did not meet her burden of establishing a valid marriage and quashed service as to Juan and dismissed the action. Florencia then filed the underlying action in which she petitioned for nullity of marriage (Nullity Action). In the Nullity Action, Juan appealed two family court orders: (1) one in which the court found that Florencia was Juan’s spouse or putative spouse, and she could proceed with the claims in her petition (Putative Spouse Order); and (2) one in which the court directed Juan to pay Florencia spousal support arrears, ongoing spousal support and attorney fees and costs (Support Order). In challenging the two orders, Juan raised a single legal issue for review on appeal: under res judicata, did the judgment in the Dissolution Action bar the relief Florencia sought in the Nullity Action? The Court of Appeal concluded the Dissolution Action and the Nullity Action involved different primary rights, and thus affirmed the Support Order. Because the Putative Spouse Order was not final, the Court dismissed Juan’s appeal. View "In re Marriage of Garcia" on Justia Law

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L.L. was a ten-year-old girl when the juvenile court issued an order finding B.S. was her presumed father pursuant to Family Code1 section 7611, subdivision (d), and also finding he was a third parent pursuant to section 7612, subdivision (c). T.L., another presumed father of L.L., and D.Z., L.L.'s mother (Mother), appealed that order, arguing: (1) there was insufficient evidence to support the court's finding that B.S. was a presumed father of L.L. under section 7611, subdivision (d); (2) the court erred in interpreting section 7612, subdivision (c), and by finding B.S. was a third parent under that statute; and (3) the court erred by not conducting the weighing process between the claims of the two presumed fathers that section 7612, subdivision (b), required. The Court of Appeal concluded there was substantial evidence to support the court's finding that B.S. was a presumed father of L.L., but the court erred in interpreting section 7612, subdivision (c), by finding B.S. was a third parent under that statute, and by not conducting the weighing process required under section 7612, subdivision (b). View "In re L.L." on Justia Law

Posted in: Family Law

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Mother appealed the juvenile court's order declaring her children dependents of the court under Welfare and Institutions Code section 300, subdivision (b)(1). DCFS cross-appealed and moved to dismiss Mother's appeal as moot. The Court of Appeal denied DCFS's motion to dismiss, affirming the juvenile court's order sustaining the section 300 petition as amended, and dismissed DCFS's cross-appeal. The court rejected DCFS's argument that In re A.B., supra, 225 Cal.App.4th 1358, was applicable in this case. The court reasoned that if the juvenile court was without jurisdiction to rule on the section 300 petition, it was also without jurisdiction to consider the section 387 petition. In this case, substantial evidence supported the juvenile court's determination that the children were persons described by section 300, subdivision (b)(1), which brings a child within the juvenile court's jurisdiction when the child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness. View "In re Travis C." on Justia Law

Posted in: Family Law

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In 2012, Vikash, a U.S. citizen born in Fiji, married Ashlyne, a citizen of Fiji, in Fiji in an arranged marriage. Vikash filed an immigration visa petition on Ashlyne's behalf, which was approved, and submitted an I–864 affidavit of support, under which the sponsor agrees to “[p]rovide the intending immigrant any support necessary to maintain ... an income that is at least 125 percent of the Federal Poverty Guidelines ... that person may sue you for this support.” According to Ashlyne, Vikash abused her and “tricked” Ashlyne into going to Fiji in 2013, where he abandoned her. Her legal permanent resident stamp was torn out of her passport. Ashlyn obtained temporary documents from the U.S. Embassy and returned to the U.S. Vikash sought an annulment. Ashlyne indicated she had applied for government assistance and argued that by signing the I–864 affidavit, Vikash agreed to support her for 10 years. The court awarded temporary support and ordered Ashlyne to make efforts to get the necessary paperwork "to work in this country if she is intending on remaining.” The court later terminated support and denied Ashlyne’s request to enforce the I–864 because Ashlyne was “not using best efforts to find work.” The court of appeal reversed. An immigrant spouse has standing to enforce the I-864 support obligation in state court and has no duty to mitigate damages. View "In re: Marriage of Kumar" on Justia Law

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K.C. (Mother) was born in California. She was deported from Mexico to the United States. San Diego Police Department officers responded to a call regarding a female (Mother) who might be unfit to care for her two children. On their arrival, the officers found A.C., then six years old, and E.C., then 15 months old, sitting on the ground with Mother. Mother appeared manic and confused about her detention and expressed irrational beliefs (e.g., she could communicate telepathically). Based on their belief Mother was gravely disabled and unable to care for herself and her two children, the officers detained Mother pursuant to Welfare and Institutions Code section 5150 and transported her to a San Diego County mental health facility for evaluation. Her children were transported to the Polinsky Children's Center (PCC). Mother appealed juvenile court orders that ultimately terminated parental rights to her sons. She contended the court erred by concluding it had subject matter jurisdiction over her children's cases under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Mexico was the children's home state; although the court sent two e-mails to Mexico courts inquiring whether they declined to exercise jurisdiction over the children's cases in favor of California's assumption of jurisdiction, Mother argued the court erred by not verifying and authenticating on the record that those e-mails were sent to the correct e-mail addresses and appropriate judicial authorities in Mexico and that those e-mails were actually received by those authorities. She further argued that, in any event, the court could not exercise subject matter jurisdiction because there is no evidence showing that the children and at least one parent had significant connections to California other than mere physical presence or that there was substantial evidence available in California concerning the children's care, protection, training, and personal relationships. Finding no reversible error with the juvenile court’s orders, the Court of Appeals affirmed. View "In re A.C." on Justia Law

Posted in: Family Law

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Marianne and Richard obtained a judgment of legal separation a few months before his death. Notwithstanding the separation, the couple‘s agreement dividing their assets reflected Richard‘s intent that Marianne would receive the pension benefits available to a surviving spouse after his death. The Contra Costa County Employees‘ Retirement Association Board, however, denied Marianne those benefits, concluding she was not Richard‘s “surviving spouse” for purposes of the governing statute. In the absence of an applicable statutory definition of the term, the Board relied on the definition found in the Probate Code. The trial court agreed. The court of appeal reversed. Because the entry of a judgment of legal separation does not terminate a marriage, but only separates a couple‘s economic interests, the plain meaning of the term “surviving spouse” includes a legally separated person. While the Probate Code defines “surviving spouse” generally not to include a person who is legally separated, several substantive provisions of the Probate Code treat legally separated spouses in the same manner as a surviving spouse; no meaningful conclusion can be drawn from the Probate Code‘s definition. The Board has not articulated any plausible public policy that would be furthered by the denial of continuance benefits in these circumstances. View "Irvin v. Contra Costa County Employees' Retirement Association Board" on Justia Law

Posted in: Family Law

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A.J. and R.G. were the parents of three children, then-aged ten, nine and seven years old. In November 2011, A.J. was arrested and deported to Mexico after he assaulted R.G. R.G. obtained an order prohibiting A.J. from having contact with her and the children. After A.J. was deported, the San Diego County Health and Human Services Agency (Agency) investigated 13 child protective services referrals on behalf of the children. The referrals were largely related to R.G.'s alcohol use and failure to supervise the children. In February 2013, October 2013, and February 2014, the Agency substantiated allegations that R.G. was neglecting the children. In October 2015, the Agency detained the children in protective custody and initiated dependency proceedings after an "extremely intoxicated" R.G. was arrested and jailed on charges of grand theft. A.J. appealed after a 12-month review hearing at which the juvenile court returned his children to their mother's care. He contended the court erred when it found that he had been offered or provided reasonable services. The Court of Appeal agreed and reversed the reasonable services finding as to A.J. In all other respects, the findings and orders were affirmed. View "In re A.G." on Justia Law

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Family Code section 271 does not authorize the court to award sanctions to non-parties, but rather is intended to promote settlement of family law litigation through shifting fees between the parties to the litigation. In this case, the Court of Appeal agreed that the trial court was without authority to award sanctions to respondents because they were not parties to this action. The court reasoned that sanctions may not be awarded under section 271 to a party's attorney when it was that attorney who was requesting the sanctions for the sole benefit of the attorney. Accordingly, the court reversed the order for sanctions. View "Webb v. Webb" on Justia Law