Recent Family Law Cases
[Opinions available at: http://www.courts.ca.gov/opinions-slip.htm]
FAMILY LAW (current through 4/22/2021)
By: Michelle L. Kazadi, CFLS
In re the Marriage of Sean Wang and Jiaojiao Zhou
4/9/21, CA 6: H046250
The parties were married in 2010, separated in 2016, and the trial court in California entered a judgment of dissolution in September 2017. Respondent Wang initiated the dissolution proceedings and the trial court acquired jurisdiction over Appellant Zhou in February 2016 when she appeared in the proceedings. The parties have one child of the marriage, a daughter, born in 2013 in China. Daughter lived primarily in China with Appellant, but made frequent, extended trips to the United States to visit Respondent, who worked in California.
In 2016, the trial court exercised its temporary jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (Fam. Code, § 3400 et seq.), and issued custody orders regarding Appellant and Respondent’s child, who lived primarily in China with Appellant. The parties incorporated the custody orders into their stipulated dissolution judgment in 2017, reiterating that the trial court made the orders pursuant to its emergency jurisdiction under the UCCJEA.
In June 2018, Appellant obtained a favorable judgment in China regarding custody of the parties’ daughter. The English translation of the Chinese judgment stated that the Chinese court conducted a trial, at which the parties and their agents appeared and participated. The Chinese judgment indicates Appellant informed the Chinese court of the dissolution proceedings in California, referencing a “provisional hearing” in the United States regarding custody, wherein the California court issued a “temporary order.” The Chinese judgment also indicates Appellant alleged to the Chinese court that she was “tricked” or “forced” by Respondent into the California dissolution. Appellant asked the Chinese court to award her custody of Daughter, with Respondent to have visitation in China one weekend per month. According to the Chinese judgment, Respondent denied tricking or forcing Appellant into the California dissolution. He alleged that the parties entered into a voluntary settlement agreement, which they both followed after the California court entered the judgment of dissolution. The Chinese court denied Respondent’s request to admit and implement the California dissolution judgment, as “the divorce case of both parties was in trial of Chinese court according to the provision Item (4), Clause I, Article 12 of Provision of Supreme People’s Court on Chinese Citizen Applying for Admitting Divorce judgment Procedure of Foreign Court.” The Chinese court determined that Appellant should have “full and sole child custody” of Daughter, with Respondent having visitation on Saturday and Sunday in the third week of every month. The Chinese judgment specifies that either party could appeal the judgment to the Beijing Second Intermediate People’s Court. Respondent appealed the Chinese judgment thereby staying its enforcement until the final determination of the appeal. Appellant filed the Judicial Council form (Registration of Out of State Order) in California to register the Chinese judgment issued by the Beijing Xingcheng District People’s Court in China in May 2018.
Respondent filed written opposition to Appellant’s registration of the out-of-state custody order with the trial court and asked the trial court to order Appellant to renew Daughter’s United States passport, and to return Daughter to the United States for visitation in Summer 2018. According to Respondent, the Chinese judgment was not yet operative, because he had appealed the judgment, resulting in a stay of the order. The trial court denied registration of the Chinese judgment.
Appellant contended the trial court erred by denying the registration because China had exclusive jurisdiction to make custody orders pursuant to Family Code section 3421, as the parties agreed China was Daughter’s home state. While section 3424, subdivision (a) allowed a California court to exercise emergency custody jurisdiction if the child was present in California and such an exercise was necessary to protect the child from mistreatment or abuse, no such emergency existed.
In accordance with the UCCJEA the court can make custody orders if it was the home state of the child on the date the custody proceeding commenced. (§ 3421, subd. (a).) “”Home state’ means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. . .” (§ 3402, subd. (g).) When the custody proceedings commenced in California in 2016, the parties conceded the fact that California did not have jurisdiction to make initial custody orders; Daughter had resided in China for at least six months prior to commencement of the proceedings. The trial court issued custody orders in March 2016 based on its temporary emergency jurisdiction under section 3424, which affords a California court custody jurisdiction “if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to, or threatened with, mistreatment or abuse.” (§ 3424, subd. (a).)
Section 3445 sets forth the procedure for registering an out-of-state custody order. If a parent contests registration, the trial court must hold a hearing, at which it “shall confirm the registered order unless the person contesting registration establishes any of the following: (1) That the issuing court did not have jurisdiction under Chapter 2 (commencing with Section 3421). (2) That the child custody determination sought to be registered has been vacated, stayed, or modified by a court having jurisdiction to do so under Chapter 2 (commencing with Section 3421). (3) That the person contesting registration was entitled to notice, but notice was not given in accordance with the standards of Section 3408.
The court of appeals concluded that the trial court properly denied Appellant’s request to register the Chinese order because Respondent established that the Chinese judgment was stayed pending his appeal. (§ 3445, subd. (b)(2).) Affirmed.
A.M. v. The Superior Court of San Diego
4/20/21, CA 4/1: D078117
By petition for writ of mandate, Petitioner (A.M.) challenged the family court’s ruling subjecting her and her child to its continued jurisdiction to adjudicate the paternal grandparents’ petition for visitation. The grandparents’ petition was filed in January of 2019, and A.M. and the minor child had moved to Washington State by February of 2019. In July of 2019, the parties’ stipulated agreement was entered by the court. In June of 2020, grandparents filed an ex parte request that the court set the matter for a two-day trial to determine visitation. A.M. opposed the request and filed her own application for an order terminating the court’s jurisdiction under the UCCJEA.
A.M. also asserted that San Diego was not the proper venue for the case and that she could not afford to travel there for the proceedings. She also argued the court did not have continuing jurisdiction under the UCCJEA because she and her child no longer resided in California, and alternatively, if the court did find jurisdiction it should decline to exercise it on the grounds of inconvenient forum after an evidentiary hearing on the issue. The court denied A.M.’s application and she then filed a request for order, repeating her assertion that was again denied by the court.
Petitioner filed a petition for writ of mandate and request for a stay challenging the FOAH of the trial court. The order denied Petitioner’s request pursuant to Family Code section 3422 and found that the minor child and Petitioner moved to the State of Washington, but the court continues to have jurisdiction over the matter as there was no dispute as to initial jurisdiction. The order further stated that there were significant connections to the State of California as the grandparents continued to reside in California and they were the party bringing the petition, the court found that it never relinquished jurisdiction, and the parties never raised the issue at the time the matter was originally set for trial; and therefore, found that it had jurisdiction under the UCCJEA to hear this matter. The appeals court stayed the proceedings in the family court and issued an order to show cause why the relief requested should not be granted.
A.M. agreed the family court had jurisdiction under the UCCJEA at the time grandparents filed their petition for visitation. She argued, however, that after the court’s initial custody decision declining to rule on grandparents’ request for visitation, the court was required to make new jurisdictional findings before entering each stipulated order. A.M. asserted that the court’s failure to do so renders those orders void. Alternatively, she contended the court erred by denying her subsequent motion to terminate its jurisdiction under section 3422, subdivision (a)(2). Grandparents responded that because jurisdiction under the UCCJEA is not fundamental, A.M. forfeited her jurisdictional challenge by not challenging the court’s initial jurisdiction and agreeing to the stipulated orders.
The provisions of the UCCJEA primarily at issue here are sections 3421 and 3422. Section 3421 states, in relevant part: “Except as otherwise provided in Section 3424 , a court of this state has jurisdiction to make an initial child custody determination only if … [t]his state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state.” (§ 3421, subd. (a)(1).) Under section 3421, “[s]ubject matter jurisdiction either exists or does not exist at the time an action is commenced. There is no provision in the UCCJEA for jurisdiction by reason of the presence of the parties or by stipulation, consent, waiver, or estoppel. Once initial jurisdiction is established under section 3421, section 3422 provides the basis for terminating jurisdiction. Under that provision, “[a] court that properly acquires initial jurisdiction has exclusive, continuing jurisdiction unless one of two subsequent events occurs: (1) a court of the issuing state itself determines that ‘neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships,’ or (2) there is a judicial determination by either the issuing state or any other state that ‘the child, the child’s parents, and any person acting as a parent do not presently reside in’ the issuing state. (§ 3422, subd. (a)(1) & (a)(2).)” (In re Marriage of Nurie (2009) 176 Cal.App.4th 478, 491).
The appeals court declined to hold the stipulated order void, despite the trial court’s failure to include the basis for the court’s exercise of jurisdiction in each order because at the time the stipulated orders were entered there had not been a specific challenge to jurisdiction at the time the orders were entered. On the other hand, the appeals court agreed with A.M. that the family court erred in finding it had continuing jurisdiction to adjudicate grandparents’ petition for visitation once A.M. objected and sought a judicial determination. As set forth above, the family court had jurisdiction under section 3421 until the requirements of section 3422 were satisfied. Under subdivision (a)(2) of section 3422, the family court’s jurisdiction would terminate once a “court of this state or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state.” A.M. objected to the court’s continuing jurisdiction in June 2020.
It is an unsettled question of law whether the jurisdiction created by the UCCJEA is fundamental and therefore unable to be forfeited. The appeals court found that A.M. did not forfeit her right to seek adjudication of her jurisdictional challenge under section 3422, and the trial court erred by denying A.M.’s request for order and concluding it had continuing jurisdiction under section 3422. The family court disregarded this second clause of section 3422 and looked only to the first. Reversed.
In re the Marriage of David Maher and Laurie Strawn
4/22/21, CA 4/1: D076487
Appeal from a judgment of dissolution of marriage contending there was insufficient evidence to impute income to the supported spouse and to step down the spousal support he was receiving. The question this case posed is whether the court may properly consider the payment of an adult child’s college expenses like any other expenditure of the supporting spouse’s discretionary income, in determining ability to pay, and whether the expense is reasonable and will result in a just and equitable award of spousal support. Citing section 4320, subdivision (n), the court concluded it had discretion to consider Respondent’s payment of the adult children’s college expenses when determining Appellant’s spousal support.
Appellant argued, if income that otherwise would be paid toward spousal support is instead spent on an adult child’s college expenses, then the supported spouse is being compelled to indirectly pay adult child support. In re Marriage of Serna (2000) 85 Cal.App.4th 482, 491. Respondent asked the court to evaluate her payment of the children’s college expenses for reasonableness—in the same way the court would consider other expenses affecting her ability to pay support.
The trial court found that college expenses for adult children are among the circumstances to be considered in setting spousal support under subdivision (e) of section 4320 (each party’s financial “obligations”), subdivision (k) (the “balance of the hardships to each party”), and subdivision (n) (“[a]ny other factors” that are “just and equitable”). The appeals court agreed with the trial court that “sending children to college is at least as much of the marital standard of living as the marital home, vacations, what cars they drive, how often they go out to eat, etc.” Moreover, a support order based in part on the supporting spouse’s payment of reasonable college expenses for adult children is not “indirect adult child support” any more than considering vacation expenses or car payments would compel indirect support of the Four Seasons hotel chain or Ford Motor Company.
In evaluating a supporting spouse’s payment of adult children’s college expenses under section 4320, the ultimate question is whether the amount is reasonable under the circumstances. In making that determination, the court should consider all relevant factors, including but not limited to: (1) whether the supported spouse, if still living with the child, would have contributed toward the educational costs; (2) the effect of the background, values and goals of the parents on the reasonableness of the child’s expectation of higher education; (3) the amount expended; (4) the supporting spouse’s ability to pay that cost; (5) the parents’ respective financial resources; (6) the commitment to and aptitude of the child for the education; (7) the adult child’s financial resources; (8) the child’s ability to earn income during the school year or on vacation; (9) the availability of financial aid including reasonable amount of loans; and (10) the relationship of the education to the adult child’s long-range career goals as affected by the family circumstances and values during the marriage. Especially in families where parents emphasized the importance of post-high school education, expected that they would contribute financially to the children’s higher education, and had the financial means to do so, it is both unrealistic and inequitable to preclude the trial court from considering parental contributions to post-high school educational expenses as a factor in determining the supporting spouse’s ability to pay spousal support. Certainly, there is nothing in the broad scope of section 4320 that would compel the court to treat these expenditures differently than it does any other discretionary expenses incurred by the supporting spouse.
The appeals court held that the trial court made the requisite findings to impute income. The step-down in spousal support reflected the court’s conclusion that Appellant could become fully employed if he applied himself to overcoming his limitations, and that he had the capacity to earn. This finding is supported by substantial evidence. Affirmed.
DEPENDENCY (current through 4/20/2021)
By: John Nieman
In re J. S.
4/1/21, CA 2/7: B301715
This is an ICWA case. Mother appealed on various grounds, but only failure to make adequate inquiry into the applicability of the ICWA and failed to notice the BIA (Bureau of Indian Affairs) was certified for publication. The exclusive claim of Native American ancestry came from test results from Ancestry.com indicating a “54% Native American lineage/heritage” of the father’s mother. No other link to a tribe was in evidence. In addition, the Department of Children and Family Services made further inquiry as required and no additional information was found. The appellate court explained that the meaning of “Native American” ancestry according to Ancestry.com included all indigenous peoples of both North and South America, not just the federally recognized tribes protected by the ICWA. That information alone, therefore, did not constitute a “reason to know” that would have triggered notification requirements. The appellate court opined that notice to the BIA would have been an “idle act.” Furthermore, it pointed out that, without specific tribal affiliations nor geographic region of such ancestry, the Department was unable to identify which tribe to send notice.
In re J.N.
4/2/21, CA 2/1: B308879
This is the proverbial “there is no ‘Go to jail, lose your child’ rule in California” case. Father was incarcerated before and after initiation of dependency. His crimes were fairly violent in nature. There was even an inconclusive referral alleging domestic violence perpetrated by him against the mother many years ago and allegedly a (nonexistent, at best undiscovered) restraining order stemming from that incident. The trial court took jurisdiction, placed the child with his mother, removed J.N. from father’s care, and bypassed father (did not provide him with reunification services because of the long term duration of his minimum expected incarceration under W&I 361.5(e)). Father appealed those decisions with respect to him. Appellate court reversed, basically agreeing with Father as to all issues. While the appellate court was sympathetic to the notion that committing violent crimes seems incompatible with safe parenting, in this case there was virtually no evidence of a nexus between those criminal behaviors and risk to the child. There being no basis for risk from Father, there was no reason to remove from him. As the child was not placed out of the home, the Father did not qualify for reunification services; and, therefore, the question of bypass moot. Reversal of the bypass was required to prevent future courts from using the unsupported detriment finding required to bypass against father.
In re A.R.
4/5/21, SC: S260928
An attorney failed to file a notice of appeal as directed by the client after the termination of parental rights at a W&I §366.26 hearing. The appellate court dismissed the appeal as untimely. The Supreme Court reversed and remanded, holding that the rule that seeming disallows any late appeal did not apply where the client was not at fault – wherein, here, it was clearly and admittedly a result of ineffective assistance of counsel. The court pointed out that both the right to competent counsel and appeal were very important, and [in this case] the failure of the latter was a result of failure of the former. Cognizant of the need to avoid delays in achieving permanency for the child, the Court also noted that an incomplete appellate review of a TPR decision was important enough to delay finalization of an adoption. The Court dispensed with the notion that delay caused by late appeals was contrary to the best interests of the minors, alluding to the importance of appeals and attendant risk of allowing uncorrected erroneous decisions to stand.
In re Rashad. D.
4/19/21, CA 2/7: B307061
Mother appealed from a jurisdictional finding wherein the court ordered her to retain custody. 3 months later, the court dismissed the case giving mother full physical and joint legal custody (with father). Mother had both sole physical and sole legal custody before intervention by the juvenile court. Mother did not appeal the dismissal decision related to the custody orders and argued that an erroneous jurisdictional finding by the lower court should allow the reversal of the final custody order. The appellate court disagreed. It found that the jurisdictional decision was rendered moot by the dismissal. It also did not agree with the Mother that the circumstances of the case presented an issue of broad public interest to justify a procedural variance. The appellate court held, that without an appeal of the final custody orders, it was unable to effectuate any change to it.