Family Law

Recent Family Law Cases

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FAMILY LAW (current through 1/20/2023)
By:  Andrew Botros, CFLS

The precise holdings in a given case are bolded.

Destiny C. v. Justin C.

01/19/2023, CA 4/1: D553087

Family Code section 3044 creates a rebuttable presumption against awarding custody of a child upon “a finding by the court that a party seeking custody of a child has perpetrated domestic violence within the previous five years…” This five-year period runs backwards from the date of the trial court’s custody ruling, not from the filing of a dissolution petition.

Los Angeles County Department of Children and Family Services v. T.P.

01/19/2023 CASC: S267429

This California Supreme Court case has important implications for the justiciability of child custody and visitation orders on appeal. This opinion discusses 1) what makes a case moot and 2) when a reviewing court can nevertheless exercise its discretion to decide a moot appeal.

The parties in this case challenged the dependency court’s jurisdictional finding under the Welfare and Institutions Code. While the appeal was pending, the trial court found that the child was no longer at risk and then terminated its jurisdiction.

Father, however, did not dismiss his appeal. He requested that the Court of Appeal find that his appeal was not moot because of the stigma associated with the jurisdictional ruling and because of his concern that he may be included on CACI, California’s Child Abuse Central Index. The Court of Appeal dismissed his appeal as moot.

The Supreme Court concluded that “stigma” alone is insufficient to sustain an appeal in the dependency context. Stigma must be “paired with some effect on the plaintiff’s legal status that is capable of being redressed by a favorable court decision.” It disapproved of prior case law that held that “speculative future harm is sufficient to avoid mootness.” It further concluded that his concern regarding being listed on CACI was “too speculative” because he did not show that the allegation was reported to CACI and because he did not show that the type of allegation in the jurisdictional finding was reportable.

Even though the appeal was moot, the Court of Appeal erred in concluding that it did not have the discretion to hear the appeal regardless.

The Court of Appeal confused these two principles when it concluded that “discretionary review is only appropriate when the parent has ‘demonstrated specific legal or practical negative consequences that will result from the jurisdictional findings they seek to reverse.’” This is what determines mootness, not whether the trial court has discretion to decide a moot case.

The Supreme Court noted that dependency cases attach to the child and not the parents, the speed at which dependency cases are modified/resolved compared the speed of appeals is slow, and that the courts frequently modify their orders in response to changing facts. If such appeals are always mooted, and because “dismissal of an appeal for mootness operates as an affirmance,” such dismissals may “have the undesirable result of insulating erroneous or arbitrary rulings from review.”

From the opinion, it is easy to conclude that these principles are applicable in family law cases.

Think of how long an appeal can take. Even if a particular District Court of Appeal provides calendar preference for custody appeals, such appeals can take more than a year. A trial court, however, can quickly change custody at an ex parte.

Let’s use an example. Let’s say, against Mother’s wishes, Mother is awarded alternating weekends and weekday overnights at trial and the trial court makes strong findings against Mother’s interference with Father’s relationship with the children that are not supported by the evidence. Mother then files an appeal but, before her appeal can be decided, Father gets a DUI with the kids in the car and the trial court changes custody to Mother. Under this case, is Mother’s appeal moot? If it is moot, can/should the Court of Appeal exercise its discretion in ruling on the appeal?

The custody appeal is likely moot but there would be good reasons for the Court of Appeal to exercise its discretion to hear the appeal on the merits. If the Court were to find that Father is sober and has conquered any substance abuse problems, Father might ask to revert to the previous order. If an earlier mooted appeal insulated the trial court’s erroneous findings that Mother interfered with Father’s relationship, that could affect the trial court’s ultimate decision in ruling on custody when, perhaps, it should not.

In Re The Marriage of D.H. and B.G.*

1/17/23, CA 4/1: D079801.

In this case, D.G. (“Mother”) appealed from an order granting Father’s request for a finding that Father’s child support obligation had terminated, and he was entitled to a refund of support. Father contended that support ended as a matter of law once the 18-year-old minor child was no longer a full-time student. Father relied on the child’s sharp reduction in enrolled units and an extended leave from school. The trial court agreed the child was no longer a full time student and ended child support as of June 2021.

Mother first argued that the order was an impermissible retroactive modification and Father was not entitled to any relief prior to the filing of his motion to modify. The Court of Appeal held that where an 18-year-old student ceases to become a full time student, the issue is not one of modification, but rather a judicial determination as to whether a child support obligation terminated as a matter of law. Accordingly, Father was entitled to relief prior to the filing of his motion. The Court of Appeal noted that Family Code section 3601(a) expressly provides that a child support order “continues in effect until the order (1) is terminated by the court or (2) terminates by operation of law pursuant to Sections 3900, 3901, 4007, and 4013.” The Court of Appeal noted that Father’s pleadings confirmed that “Father was seeking a judicial determination that his child support obligation had already terminated as a matter of law, not a retroactive modification of child support.” The Court of Appeal also concluded that Father was not required to establish a change of circumstances because no such finding is required when a child support obligation terminates as a matter of law.

The Court of Appeal rejected both the appellant and Father’s approach to how “full-time high school student” should be defined. It concluded that the definition of “full-time” in Family Code section 3901 was the same as that of Education Code section 42800: “the length of the school day” as designated “by the governing board of the school in which” the parent or legal guardian resides. The Court of Appeal also stressed, however, that “courts should not be so rigid in applying the ‘full-time’ standard that it defeats the Legislature’s goal of continuing child support to afford unmarried students between the ages of 18 and 19 an opportunity to complete a high school education. For example, the Education Code provides that students may have valid excuses for being absent from school, such as illness, death in the family, medical appointments, cultural ceremonies, and ‘other reasons that are within the discretion of school administrators and, based on the facts of the of the pupil’s circumstances, are deemed to constitute a valid excuse.’ (Ed. Code, §§ 48260, subd. (c), 48205, 48225.5.)”

The Court of Appeal also gave guidance on how to apply this standard with summer vacations. As to the summer vacation period, the trial court “should take into consideration the school calendar for the schools A.G. was attending…a parent’s child support obligation does not terminate just because a student who has turned 18 is taking either no classes or something less than a full course load during the summer break…”

Mother also argued that no evidence was properly before the Court because Father did not move to admit any evidence at the hearing. Citing Binette and Deamon, the Court of Appeal concluded that the “parties agreed to rely on the pleadings.” Deamon, in particular, states that “nothing in section 217 requires a party to offer evidence at a motion hearing when the motion is being decided solely based on the party’s written submissions, because no party has taken proper steps to present live testimony.” Since neither party took any such steps and there were no objections, Father did not have to move in particular items of evidence at the hearing.

Finally, as a matter of policy and after analyzing the relevant factors (the knowledge of the parties concerning the particular fact, the availability of the evidence to the parties, the most desirable result in terms of public policy in the absence of proof of the particular fact, and the probability of the existence or nonexistence of the fact), the Court of Appeal concluded it should be Mother’s burden to show that the child was still a full-time student on remand.

*Author’s note: Andrew Botros, CFLS represented B.G. (“Father”) at the hearing in the trial court. B.G. represented himself on appeal and did not make an appearance.

As far as practice pointers are concerned, the analysis on the burden of proof is the most important part of the opinion. Although it is not mentioned in the opinion, DCSS and Mother argued that it was Father’s burden to establish that the child was no longer a full-time student. We prepared points and authorities arguing the same factors noted by the Court of Appeal and argued it was Mother’s burden. I rarely see trial lawyers argue burden shifting in this manner (in fact, this was the first time I tried it myself). Family lawyers need to be mindful of the factors that lead to burden shifting and they need to be prepared to identify when a burden shift should occur in their cases. There are so many situations in family law where one party has all the knowledge of a particular fact and has all the evidence regarding that fact in their possession. Don’t be afraid to argue burden shifting in these situations.

Brubaker v. Strum

1/13/2022, CA 2/7: B317694

The “question in this appeal is whether [Family Code section 5241 and other relevant statutes, taken together] prevent an obligee…from seeking a request for an order determining arrearages from an obligor…whose employer was subject to a valid income withholding order at the time of the alleged underpayments.” The trial court not only denied the obligor’s request but awarded 128.5 sanctions against the attorney for maintaining the position that the obligor could continue to enforce against the employee/obligor despite the income withholding order. The Court of Appeal concluded that Family Code section 5241 does not insulate an obligor from an action to enforce the payment of arrearages by the obligor whose employer was subject to a valid income withholding order at the time of the alleged underpayments.

Geoff Cole v. Superior Court

12/30/2022, CA 4/1: D081299

The Court of Appeal first noted that Code of Civil Procedure section 1010.6 provides that: “If a document may be served by mail, express mail, overnight delivery, or facsimile transmission, electronic service of that document is deemed complete at the time of the electronic transmission of the document or at the time that the electronic notification of service of the document is sent.” It noted further that the statute “further provides that ‘[a]ny period of notice . . . which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days.’ ” Finally, the Court of Appeal noted that “the statute also provides that ‘[t]his extension applies in the absence of a specific exception provided any other statute or rule of court.’ ” (Id. at subd. (a)(3)(C).)

Accordingly, it concluded that the Petitioners were “incorrect that their motion for summary judgment was due by October 7, since this calculation does not account for the two-day extension of the noticing period that applied [under Code of Civil Procedure section 1010.6]” to the motion for summary judgment.

Wehsener v. Jernigan

12/28/2022, CA 4/1: D079623

First, the Court of Appeal concluded that “California law applies to determine parentage when a person claims to be an heir of an intestate decedent who was domiciled in California when he or she died, even if, as in the instant case, the parent and child relationship was effectuated outside California.”

Second, the Court of Appeal concluded that “public policy alone” could not rebut the presumption of natural parenthood. To wit, Family Code section 7612(a) allows only clear and convincing evidence to rebut the presumption, and “only where there are conflicting presumptions” do the “weightier considerations of policy” control.

Victor Valley Union High School District v. Superior Court

12/22/2022, CA 4/2: E078673

Code of Civil Procedure section 2023.030(f) provides that “absent exceptional circumstances, the court shall not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system.Interpreting that statute, the Court of Appeal held that “the safe-harbor provision of section 2023.030(f) shields a party from sanctions for the spoliation of electronic evidence only if the evidence was altered or destroyed when the party was not under a duty to preserve the evidence, and the duty to preserve relevant evidence is triggered when the party is objectively on notice that litigation is reasonably foreseeable, meaning litigation is probable and likely to arise from an incident or dispute and not a mere possibility.”

DEPENDENCY (current through 1/20/2023)
By:  John Nieman

In re S.V.

12/22/22, CA 1/5: A163272

The Juvenile Court conformed to proof a petition whose basis and language strayed too far from the original petition, violating mother’s due process rights. The pled allegations were related to Welfare and Institutions Code (W&I) §300(d), that father had sexually abused the minor. The conformed and sustained petition was under W&I 300(c) alleging serious emotional damage basically caused by mother. Mother had made over the years numerous allegations of father sexually abusing minor beginning many years before their divorce about 4 years after the minor’s birth. Until the dependency case in Humboldt Co., none of those allegations were found by either the family court nor child welfare systems to be founded or substantiated. Although minor’s counsel had asserted the allegations ultimately sustained by the Juvenile Court during discourse prior to the contested hearings, Humboldt Co. Department of Health and Human Services (Department) never wavered from its stance (and more importantly never amended its original petition) that the child was sexually abused by the father.

The appellate court relied upon In re Jessica C. (2001) 93 Cal.App.4th 1027 and factually similar In re G.B. (2018) 28 Cal.App.5th 475 in finding that since mother wasn’t alleged in the filed petition as an offending parent, the shift in the conformed petition to that effect violated her due process rights. Additionally, the appellate court found that the Juvenile Court impermissibly supplanted the Department’s petitioner role to the minor and father; minor and father failed to exercise avenues vís W&I §329 or §331 related to challenging the Department’s decision about petition content which are the mechanisms for such a change to preserve due process rights of all parties.

Reversed and remanded to vacate the jurisdictional and dispositional findings and orders and proceed accordingly. Notably, the disposition was subsequently modified (but prior to the issuance of this decision) and the case transferred to Mendocino Co., meaning impliedly that the remand will be handled by the Mendocino Co. Juvenile Court.

In re D.B.

1/5/23, CA 4/2: E079380

This is an Indian Child Welfare Act (ICWA) case. Parents appealed the termination of parental rights order, alleging an inadequate initial inquiry was made (as required by Welfare and Institutions Code §224.2(b)) into extended family members about the child’s possible native American ancestry. There was no contention that the inquiry was adequate. Claims that despite the inadequate inquiry no prejudice was shown were rejected as speculative as to the results of a proper inquiry as well as to the assertion of tribal interests. The appellate court ordered a conditional reversal: reversed parental rights until after a proper ICWA inquiry is performed, with reinstatement of termination if no ICWA is found to be applicable, or to proceed accordingly if the ICWA is found applicable.

*Author’s note: Respectfully, this Appellate Court, like others, refers to the parent appellants as “Defendants.” Dependency practitioners across our state strive to focus their parent clients on the issues in question before Juvenile Courts, namely the well-being and best interests of their minor child(ren). In that process, parents naturally feel like they are being accused of committing a crime, whether or not they are in fact facing criminal charges related to the dependency case. Perhaps more frequently however, a parent accused variously of abuse or neglect of their child(ren) are not facing criminal charges nor are convicted criminals. Furthermore, the relevance of criminal charges and/or convictions is rarely statutorily material to proceedings. Moreover, juvenile dependency jurisdiction is over a child; a Juvenile Court’s jurisdiction over parents is ancillary, i.e. through the jurisdiction obtained over the child. Consequently, use of the term “Defendant” to describe appellant parents in appeals of juvenile dependency cases, however innocently employed, is inaccurate and potentially undermines Dependency Systems’ efforts to focus families on the positive potential to correct and heal from the unfortunate damage from harmful parenting.

In re D. P.

1/19/23, CA S267429

This is a case about mootness on appeal. The state Supreme Court does a thorough review of the legal framework for mootness. It agrees with the appellate court in this case that Father’s appeal is in fact moot (pages 16-17). In so doing, the Court disapproves of In re Daisy H. (2011) 192 Cal.App.4th 713 because it permits avoidance of mootness based on a speculative benefit [avoidance of possible negative future consequences as a result of the jurisdictional finding -see page 10]. The Court then goes on to outline general factors, and those peculiar to dependency proceedings, that might justify discretionary review of ostensibly moot appeals. Similarly on page 18 it disapproves of In re Drake M. (2012) 211 Cal.App.4th 754 which says review is discretionary when reversal of jurisdictional findings would impact viability of also-challenged dispositional orders. This case says that when jurisdictional findings impact dispositional orders and both are challenged, the appeal is necessarily not moot.* The case before it was where an infant’s broken rib came to the attention of doctors and then the local child protection agency during treatment of a respiratory infection. After taking jurisdiction and disposition, parents were very diligent and cooperative. Before their appeal of the merits of the jurisdictional findings could be decided, the case was dismissed with the child in their custody. The appellate court denied to consider review due the mootness after requiring that father basically show that some legal or practical benefit other than removing stigma might be accomplished by reversal. The error, according to the Supreme Court, was that were father able to make that showing there would be no discretion to not review the case, because that would mean that the case was not moot. Since the appellate court’s discretion permits it to review moot cases, the case was remanded to give father an opportunity to convince the appellate court that, despite being moot, it should nonetheless review the case for a qualifying reason such as those outlined in the decision.

*Author’s note: At the risk of engaging in a semantic discourse, all dispositional orders necessarily stem from jurisdictional findings; without jurisdiction, a trial court has no authority (other than temporary orders which are not appealable) to make dispositional orders. Indeed, dispositional orders not based on jurisdictional findings are necessarily suspect; while permitted by legitimate factual bases not specifically included in the petition itself, dispositional orders must nevertheless share a logical nexus to jurisdictional findings. The decision on page 18 says: “However, where a jurisdictional finding “serves as the basis for dispositional orders that are also challenged on appeal” [citation omitted], the appeal is not moot.” It is possible to appeal just jurisdictional orders, as was apparently done here. Yet as the juvenile court never removed this child from the appellants’ care and custody, challenging dispositional orders might be seen, rightfully, as very risky. Furthermore, challenging dispositional orders such as a parenting class designed to improve parenting skills, might seem disingenuous or arrogant.

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