Justia California Court of Appeals Opinion Summaries

Articles Posted in Family Law

by
The Court of Appeal held that evidence of a legal guardian's occasional methamphetamine use outside the legal guardian's home and while the child was in the care of another adult in the home does not support dependency jurisdiction under Welfare and Institutions Code section 300, subdivision (b). The panel also held that there was no substantial evidence showing that the legal guardian abused methamphetamine, and no substantial evidence showed that the child was at risk of serious physical harm. Therefore, the court reversed the juvenile court's jurisdictional order. View "In re L.C." on Justia Law

Posted in: Family Law

by
Mother C.W. and father J.C. appealed a juvenile court’s orders terminating parental rights and freeing the minor for adoption. The parents contended the juvenile court erred in failing to find the beneficial parental relationship exception to adoption applied, and that the county and juvenile court failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA). After review of the specific facts of this case, the Court of Appeal disagreed with the parents’ first contention, but conditionally reversed and remanded the matter for further ICWA compliance. View "In re A.W." on Justia Law

by
Daughter was born in 1994. In 1995, following a request by Mother for child support in a civil paternity action in which Father participated, the court ordered Father to pay $360 per month. The Santa Clara County Department of Child Support Services did not participate in that paternity action. Father was incarcerated in 1998-2005 and never sought to modify, quash, or otherwise terminate the 1995 child support order. In 2004, Mother sought the Department's assistance in enforcing child support. In 2015, the Department filed a notice of motion and requested a hearing for the purpose of increasing Father’s monthly payment to liquidate his arrears. Father, for the first time, informed the Department and the court that he had been incarcerated. In 2016, the court granted the Department’s motion to increase Father’s monthly payments but, on its own motion, awarded Father “equitable credit” for his period of incarceration. Invoking its authority under Family Code section 290, the court reduced the amount owed in child support by approximately $70,000. The court of appeal reversed, holding that the trial court lacked authority to retroactively adjust Father’s arrears. Although legislation enacted in 2010 and 2015 suspended the accrual of child support for incarcerated parents, the statutes do not apply retroactively. View "S.C. v. G.S." on Justia Law

Posted in: Family Law

by
Father appealed an order providing that he and mother share joint legal custody of their son, issued as an order terminating dependency jurisdiction under Welfare and Institutions Code section 362.4. The Court of Appeal held that Family Code section 3044, and its rebuttable presumption against awarding sole or joint custody of a child to certain perpetrators of domestic violence, does not apply to dependency proceedings under section 300 et seq. The court also held that the juvenile court's decision to award joint legal custody in this case was not an abuse of discretion. View "In re C.M." on Justia Law

Posted in: Family Law

by
Mother appealed the trial court's orders declaring her son a dependent of the court and removing him from the care, custody, and control of mother, releasing the child to father and terminating jurisdiction with a custody order awarding father sole legal and physical custody. The trial court also ordered that mother have no visitation with the child. The Court of Appeal affirmed, holding that the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) takes a strict "first in time" approach to jurisdiction. The rule, subject to exceptions inapplicable here, is that once the court of an "appropriate state" -- one having jurisdiction under Family Code 3421, subdivision (a) -- has made a child custody determination, that court obtains exclusive, continuing jurisdiction. In this case, the initial child custody determination was made by the court in Orange County on January 2, 2014. View "In re E.W." on Justia Law

Posted in: Family Law

by
J.P. (born 2013) and his half-brother, A.A., were taken into protective custody after their mother's arrest. J.P.’s biological father was not involved in J.P.’s life. Albert, A.A.’s biological father, had been living with the family and wanted to be designated as J.P.’s presumed parent. Mother and Albert separated during the dependency proceedings. Mother claimed that Albert had problems with alcohol, smoked heavily, and scared the children when he got into loud arguments. Police had responded several times to reports of disturbances between mother and Albert. J.P. and A.A. were moved from foster home placement to Albert’s parents’ home. Both mother and Albert visited both children. The children “show[ed] comfort” in Albert’s presence. Albert ensured that the children were fed and took them to parks. Albert testified about his close relationship with J.P., who had called Albert “daddy.” Mother disputed his accounts. The juvenile court determined that Albert did not qualify as J.P.’s presumed father under Family Code section 7611(d), although there was “no doubt” that there was a bond. Mother opposed Albert’s request for regular visitation. The court concluded that it would be in J.P.’s best interest to maintain his relationship with Albert and ordered weekly visitation, to occur when A.A. visited Albert. The court of appeal affirmed, rejecting an argument that the juvenile court did not have the authority to order visitation with nonparents. View "In re J.P." on Justia Law

Posted in: Family Law

by
Manish and Priyanka married in 2014. Manish filed a petition for nullity of marriage in December 2015, alleging that the marriage was voidable based on fraud. Priyanka filed a response, denying the allegations but requesting a dissolution of the marriage due to irreconcilable differences. In May 2016, Priyanka filed a request for a domestic violence restraining order (DVRO). In September 2016, the trial court denied both Manish’s petition and Priyanka's request for a DVRO. In February 2017, Priyanka filed a new DVRO request, which was granted with a five-year duration. The next day, Manish sought a DVRO against Priyanka. Priyanka denied the allegations but did not file a separate request for another DVRO against Manish. Manish denied committing any acts of domestic violence but admitted sending a letter to Priyanka’s employer. Priyanka denied ever hitting Manish but admitted that on two occasions she pushed him away because he was too close to her. The court made a finding under Family Code Section 6305 that each party has committed acts of domestic violence and entered a mutual restraining order. The court of appeal concluded that the trial court lacked authority to impose a mutual restraining order because Priyanka had not filed a separate written request for such an order as required by section 6305(a)(1). View "Marriage of Ankola" on Justia Law

by
Mother has legal and physical custody of the child. Father was ordered to pay one-half of reasonable childcare costs. Mother sought an order, directing Father to pay one-half of childcare costs incurred while she attended a paralegal program. She was employed in a law office as a receptionist/assistant working 28 hours per week. Mother explained that since 2011, when she was laid off from a job due to government budget cuts, she had been unable to secure stable employment. She supplemented her income with public assistance. She anticipated that paralegal certification would provide the skills to secure permanent employment and become fully self-supporting without public assistance. Father argued that Mother was able to secure employment with her existing job skills and was not required by her employer to increase her skills, sp her decision to pursue paralegal studies was a personal choice unrelated to her “employment or to reasonably necessary education or training for employment skills.” The court denied Mother’s request. The court of appeal concluded that section 4062 applies “to a situation where a party is employed with marketable skills and is electing to improve their skills through education.” The statute’s plain language does not restrict “employment” or “employment skills” to current employment, or to general principles governing child support awards. View "Greiner v. Keller" on Justia Law

Posted in: Family Law

by
Wife moved out of the couple's joint tenancy property and sought dissolution of marriage. The summons included an automatic Family Code section 2040 order, prohibiting the parties from transferring property without the other party's written consent or court order. "Before .... a right of survivorship to property can be eliminated, notice of the change must be filed and served on the other party.” WIfe subsequently created a Trust, naming Raney, as the trustee and the sole beneficiary upon her death. Wife recorded a Deed, stating that she severed the joint tenancy pursuant to Civil Code 683.2; it transferred her interest to Raney, as trustee. Wife notified Husband that she had terminated the joint tenancy. Raney, as trustee, sought partition by sale. Meanwhile, Wife died. The court of appeal affirmed that severance of the joint tenancy substantially complied with the notice requirement but that the transfer to the Trust violated the automatic restraining order. It reformed the Deed to severing the joint tenancy only, concluding that Raney, as personal representative of Wife's estate, is the owner of an undivided one-half interest and entitled to an order of partition by sale. Parties to pending dissolution proceedings are restrained from unilaterally eliminating a right of survivorship unless, in addition to the general. When the Partition Complaint was filed and served on Husband, Wife’s severance of the joint tenancy became effective to eliminate the right of survivorship. When WIfe died, her tenancy in common interest was her separate property and became part of her estate. View "Raney v. Cerkueira" on Justia Law

by
At the direction of the trial court, respondent Rebecca Tam filed a petition seeking to join appellant Dr. John Kachorek as a party to the marital dissolution proceeding between her and her former husband, Paul Benner. In her petition, Rebecca outlined the unusual procedural history of this case that led to her filing the petition for joinder. The trial court dissolved Rebecca and Paul's marriage in June 2010. In May 2011, Paul filed a postjudgment motion seeking modification of child custody. In June 2013, the trial court appointed Dr. Kachorek, pursuant to Evidence Code section 730, to conduct a child custody evaluation. Dr. Kachorek issued a child custody evaluation report in 2014. In 2016, the trial court determined that Dr. Kachorek's report was deficient in a number of respects and that the report was thus of no value in assisting the court in determining what would be the appropriate child custody arrangement. The court ordered Dr. Kachorek to repay Rebecca and Paul all of the expert fees that they had paid him pursuant to his appointment. In March 2017, the trial court set aside the repayment order and joined Dr. Kachorek, sua sponte, as a party to the action for the purpose of determining whether to order him to repay the fees. The trial court subsequently granted Dr. Kachorek's motion to quash the sua sponte joinder order and ordered Rebecca to file a formal petition to join Dr. Kachorek in the action. When she did, Dr. Kachorek filed a special motion to strike the petition pursuant to the anti-SLAPP statute, arguing "the claims asserted in the petition arise from protected activity" under the statute. Rebecca opposed the motion, in which she argued that her petition "does not even contain a cause of action," and that she sought merely to provide Dr. Kachorek with notice of a hearing regarding his fees under Evidence Code section 730, as directed by the trial court. The trial court denied Dr. Kachorek's anti- SLAPP motion, concluding that the petition did not state a cause of action arising from protected activity, but rather, merely joined Dr. Kachorek to the action for the purpose of "establishing the reasonableness of his fees." The Court of Appeal concluded the trial court properly denied Dr. Kachorek's motion, though it found Dr. Kachorek did not have to be joined as a party to the dissolution action in order for the court to determine the reasonableness of his expert fees—including whether to order him to repay fees already received—and it was error for the court to require that he be joined in the action. The matter was remanded with instruction on the proper procedural manner by which the trial court could determine this issue on remand. View "Marriage of Benner" on Justia Law

Posted in: Family Law