Articles Posted in Family Law

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This appeal arises from the juvenile court's selection of a tribal customary adoption as the permanent plan for minors A.S. and E.S. and the corresponding award of full faith and credit to the tribal customary adoption order. C.S. (Father) and T.F. (Mother) appeal the court's orders, contending that their due process rights were violated by the failure of the tribe to consider evidence from the parents in developing a tribal customary adoption order and by the court's exclusion of evidence at the Welfare and Institutions Code section 366.26 hearing. The Court of Appeal found the trial court stated it had reviewed the reports that it had received and had considered the testimony and arguments of the parties before arriving at a decision. The trial court noted that the parents had received more than 44 months of services and that neither parent had adequately addressed the protective issues raised by the case. The court found that A.S. and E.S. were specifically and generally adoptable Indian children and that the social worker had consulted with the Tribe, which had elected a permanent plan of tribal customary adoption for the children. The court received the Tribe's Tribal Customary Adoption Order and afforded it full faith and credit. Mother and Father separately appealed these orders from the section 366.26 hearing on various grounds. Finding no reason to disturb the trial court's orders, the Court of Appeal affirmed the orders in their entirety. View "In re A.S." on Justia Law

Posted in: Family Law

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R.B. (father) and D.R. (mother) were citizens of India who were married in India. They came to California, where they had their only child, a daughter, born in October 2013. In December 2016, the father allegedly slapped the child and hit the mother. In February 2017, the mother discovered that the father was involved with another woman. She immediately left for India with the child. In 2017, the mother obtained a restraining order in India giving her sole custody of the child. Shortly thereafter, the father obtained an ex parte order (later stayed) in California giving him sole custody of the child. After an evidentiary hearing, the trial court ruled that it had jurisdiction, but that India was a more appropriate forum. It therefore stayed the California proceeding. The father appealed, contending the trial court erred by finding that India was a more appropriate forum, because: (1) India did not have concurrent jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA); and (2) the trial court misevaluated the statutorily relevant factors. In the published portion of its opinion, the California Court of Appeal held India could be an inconvenient forum even if it did not have concurrent jurisdiction under the UCCJEA. In the nonpublished portion, the Court found no other error. Hence, the Court affirmed. View "R.B. v. D.R." on Justia Law

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Mother and Father appealed the juvenile court's order terminating their parental rights to their children. The Court of Appeal held that the juvenile court had jurisdiction under the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) after a Nevada juvenile court declined to exercise jurisdiction. The court conditionally reversed and remanded, holding that the investigation required by the Indian Child Welfare Act (ICWA) was not complete. In this case, HSA conceded that it had not substantially complied with the ICWA notice requirements, the order terminating parental rights should be vacated, and reversal was required to determine the applicability of the ICWA. View "In re E.R." on Justia Law

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A trial court must make explicit findings on the issues listed in Family Code subdivision (a)(2) of section 2030 regarding attorney's fees and costs. Wife appealed the trial court's judgment in a marriage dissolution proceeding, challenging the trial court's determination of child support, spousal support, attorney fees, and interests in an oilfield service. In the published portion of the opinion, the Court of Appeal held that wife established the child support award in the June 2016 judgment was based on the erroneous exclusion of husband's income tax refunds from his net income available for child support; the exclusion of husband's voluntary contributions to a 401(k) retirement savings plan from his net income available for child support was error, unless on remand the trial court provided findings that justified the exclusion of all or part of those contributions from his income; and the trial court erred in declining to award wife additional attorney fees at the conclusion of the proceeding where the record clearly demonstrated a disparity in access and ability to pay. View "Morton v. Morton" on Justia Law

Posted in: Family Law

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The Obata sisters, died intestate in 2013, having never married and with no descendants. Letters of administration of the estates were issued in the Alameda County Superior Court. A dispute arose regarding the line of succession that centered on the decedents’ father, Tomejiro and the impact of his “yōshi-engumi” by Minejiro and Kiku Obata in 1911. Appellants are the descendants of Tomejiro’s biological parents, the Nakanos. The court found in favor of the Obata family members. The court concluded that California recognizes Tomejiro’s yōshi-engumi as a legal adoption and that under the Probate Code, “The adoption of Tomejiro Obata by Minejiro Obata and Kiku Obata severed the relationship of parent and child between Tomejiro Obata and his natural parents.” The court of appeal affirmed, citing Probate Code sections 6450-6451. While the primary purpose of Tomejiro’s adoption may have been to create an heir, the role of an heir in Japanese society at that time was considerably more expansive than under California law, involving not just inheritance rights, but financial and moral obligations to care for relatives and honor the family’s ancestors. Whether Tomejiro’s adoption would have terminated his relationship with his biological parents under Japanese law now or in 1911 is immaterial. View "Estate of Obata" on Justia Law

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Wife appealed the trial court's judgment entered in a marriage dissolution proceeding. In the published portion of the opinion, the Court of Appeals held that wife has established the child support award in the June 2016 judgment was based on the erroneous exclusion of husband's income tax refunds from his net income available for child support; the exclusion of husband's voluntary contributions to a 401(k) retirement savings plan from his net income available for child support was error, unless on remand the trial court provides findings that justify the exclusion of all or part of those contributions from husband's income; the trial court erred in declining to award wife additional attorney fees at the conclusion of the proceeding; a trial court must make explicit findings on the issues listed in subdivision (a)(2) of Family Code section 2030; and the record clearly demonstrated a disparity in access and ability to pay and thus a further award of attorney fees and costs was mandatory. View "Marriage of Morton" on Justia Law

Posted in: Family Law

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Defendant-appellant, C.T. (Mother), appealed the dependency court’s dispositional judgment granting Mother reunification services in her absence, under Welfare and Institutions Code section 361.5. Mother claimed that her whereabouts were unknown on the date of the dispositional hearing for purposes of subdivision (b)(1) of section 361.5, thus entitling her to set a six-month hearing rather than a selection and implementation hearing. If the court denied reunification services under section 361.5(b)(1) and if the whereabouts of the parent become known within the first six months, the court may then order reunification services. As a result, a parent could potentially gain six more months to reunify with the child up to the maximum 12-month period of reunification services from the date of entry into the dependency system. Relevant here, 361.5(b)(1) was found not applicable and reunification services were ordered in Mother's absence. Mother contended the dependency court abused its discretion by commencing reunification services rather than withholding services. The Court of Appeal reduced Mother's argument to one in which she sought to use this bypass provision (361.5 (b)(1)) as a sword by arguing that the trial court abused its discretion by granting her reunification services instead of denying them under section 361.5 (b)(1). Plaintiff-respondent, San Bernardino County Children and Family Services (CFS), argued Mother’s contention lacked merit. Finding that the dependency court did not misconstrue 361.5(b)(1) or act contrary to its intent, the Court of Appeal affirmed its judgment. View "In re Molly T." on Justia Law

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Farima Kushesh-Kaviani (Wife) and Wishtasb Kushesh (Husband) were married in January 2010. The marriage did not last. Their only child was born in April 2011, and the couple separated within two weeks of his birth. Husband filed for dissolution in late August 2011. During the marriage the couple lived in Husband’s separate property condominium in Laguna Niguel; however, the property at issue in this appeal was one called “unit 13k” three doors down from the Laguna Niguel condo. It was acquired about four months into the marriage. The issue this case presented for the Court of Appeals' review centered on whether an intefspousal transfer grant deed (ITGD) met the requirements for a transmutation of the character of marital property under Family Code section 852. The trial court determined the ITGD in this case did not contain the requisite language to effectuate a transmutation. The Court of Appeal disagreed, however: the standard ITGD expresses an intent to transfer a property interest from one spouse to another. The document at issue here met all of the necessary features of an intefspousal transfer. The Court therefore reversed the trial court, and remanded this matter for further proceedings as to whether the beneficially-interested spouse here dispelled any presumption of undue influence that might have arisen giving rise to this ITGD. View "In re Marriage of Kushesh & Kushesh-Kaviani" on Justia Law

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Defendant-appellant, S.A. (Mother), appealed the termination of her parental rights to N.G., a boy born in 2005. She argued the juvenile court erroneously failed to ensure that plaintiff-respondent, Riverside County Department of Public Social Services (DPSS), fully investigated N.G.’s paternal lineal ancestry and gave adequate notices of the proceedings to all federally recognized Cherokee tribes and to the Bureau of Indian Affairs (BIA), pursuant to the Indian Child Welfare Act (ICWA) and related California law. After review, the Court of Appeal agreed Mother’s claim had merit and conditionally reversed the judgment. The Court also concluded that DPSS had to be ordered to further investigate N.G.’s paternal lineal ancestry, and include any newly discovered information concerning N.G.’s paternal lineal ancestry in the ICWA notices to all federally recognized Cherokee tribes, the BIA, and all previously noticed tribes. DPSS was also ordered to inquire whether N.G. may have maternal lineal ancestry and, if so, send additional ICWA notices, as appropriate. View "In re N.G." on Justia Law

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Father appealed from domestic violence restraining orders that were granted under the Domestic Violence Prevention Act (DVPA). The Court of Appeal held that the trial court erred by not making the factual findings required under Family code section 6305, but that substantial evidence supported a finding that father was a primary aggressor. In this case, there was no evidence to support a finding that mother acted as a primary aggressor and there was evidence of a long history of father perpetrating physical violence against mother. View "Melissa G. v. Raymond M." on Justia Law

Posted in: Family Law