Family Law
Recent Family Law Cases
FAMILY LAW (Through 9/22/2024)
By: Andrew Botros, CFLS, CALS
The precise holdings in a given case are bolded. Auther’s note is italicized.
Cardona v. Soto
Cardona v. Soto
9/17/2024 CA 1/1: A167089 – P.J. Humes
https://www.courts.ca.gov/opinions/documents/A167089.PDF
In this case, the Court of Appeal reversed a DVRO issued against Father in favor of Mother, which also protected the parties’ 12-year-old daughter. The DVRO arose from an incident where Father, allegedly intoxicated, physically assaulted his current wife in the presence of his daughter. When the daughter intervened by contacting a relative, Father reportedly slapped her and used derogatory language.
Father appealed the DVRO, arguing that his due process rights were violated when the trial court conducted an unreported, in-chambers interview with the parties’ daughter outside the presence of the parties. He was neither informed of her testimony nor given an opportunity to respond. The Court of Appeal agreed, holding that this procedure violated his due process rights.
The Appeal was not Moot Despite the DVRO’s Expiration Because the Family Code section 3044 Presumption Extended Beyond the DVRO’s Expiration
Although the DVRO expired during the appeal, the Court of Appeal held that the appeal was not moot due to the continuing impact on Father’s custody rights under Family Code section 3044. This statute creates a rebuttable presumption against awarding custody to a parent who has committed domestic violence within the previous five years.
It was Appropriate to Excuse Forfeiture Because This Case Raises Important Constitutional Issues
Mother contended that Father had forfeited his due process claim by failing to object at trial. However, the Court of Appeal declined to apply the forfeiture rule, stating: “A claim of error on appeal may be deemed forfeited if the objection was not raised in the trial court. However, ‘application of the forfeiture rule is not automatic,’ and when a party raises an important constitutional claim, we may exercise our discretion to consider its merits.” (In re N.R. (2023) 87 Cal.App.5th 1187, 1199.) The Court of Appeal emphasized that Father’s claim presented “a serious issue of due process impacting his custody of and contact with [his daughter],” thus permitting it to address his arguments on the merits.
The Failure to Create a Record or Summarize the Daughter’s Testimony for Father Violated Father’s Due Process Rights
The Court of Appeal underscored that due process rights were heightened in this context because of the implications for Father’s parental rights, including the rebuttable presumption under Family Code section 3044 against awarding custody to a parent who has committed domestic violence. Quoting In re Amy M. (1991) 232 Cal.App.3d 849, 864, the Court stated: “The fundamental and crucial right to ‘conceive and raise one’s children’ is protected by due process guarantees. ‘The interest of a parent in the companionship, care, custody, and management of the parent’s children is a compelling one, ranked among the most basic of civil rights, and the state, before depriving a parent of this interest, must afford the parent adequate notice and an opportunity to be heard.’ ”
The Court of Appeal found that the trial court’s failure to create a record or at least summarize the daughter’s testimony deprived Father of a meaningful opportunity to respond, thus violating his due process rights. “We agree with Father that the trial court’s failure to have the interview reported or to otherwise inform him of the substance of what daughter said ‘fundamentally deprived him of the ability to rebut or explain [the] evidence the trial court considered and relied upon’ in issuing the DVRO.”
The Court of Appeal emphasized that “due process requires ‘the right to be heard in a meaningful manner.’ ‘A meaningful hearing requires an opportunity to examine evidence and cross-examine witnesses.’ ” (In re Marriage of D.S. & A.S. (2023) 87 Cal.App.5th 926, 935.)
Although the Statutory Scheme Permits In-Chambers examination of Children Outside the Presence of the Parties, They Nevertheless Suggest Some Record Must Be Made of Such Testimony.
The Court of Appeal acknowledged that in other contexts, such as dependency proceedings, in-chambers testimony by minors is permissible under certain conditions. “In dependency proceedings, for example, ‘the testimony of a minor may be taken in chambers and outside the presence of the minor’s parent or parents, if the minor’s parent or parents are represented by counsel, the counsel is present,’ and an enumerated circumstance exists, including that ‘the minor is afraid to testify in front of the parent or parents.’ (Welf. & Inst. Code, § 350, subd. (b).) This statutory procedure has been upheld against due process challenges. (In re Amy M., supra, 232 Cal.App.3d at pp. 866–867.)”
Similarly, in family law cases, courts must follow specific procedures when obtaining testimony from minors regarding custody or visitation preferences. “A trial court ‘making an order granting or modifying custody or visitation’ in a family-law case is prohibited from allowing a child to express ‘a preference as to custody or visitation’ in the parties’ presence, unless the court finds it would be in the child’s best interest. (§ 3042, subds. (a), (f).)” Furthermore, California Rules of Court, rule 5.250(e)(3)(D), requires the court to consider “[w]hether a court reporter is available in all instances, but especially when testimony may be taken outside the presence of the parties and their attorneys and, if not, whether it will be possible to provide a listening device so that testimony taken in chambers may be heard simultaneously by the parents and their attorneys in the courtroom or to otherwise make a record of the testimony.”
The Court of Appeal noted that while these authorities allow for in-chambers interviews, they include safeguards to ensure due process. “These requirements clearly contemplate that some record will be made of a child’s testimony outside the parent’s presence, which will in turn be shared with the parent.”
C.C. v. D.V.
C.C. v. D.V.
9/16/2024 CA 1/3: A168514, A169350 – J. Rodríguez
https://www.courts.ca.gov/opinions/documents/A168514.PDF
Background
C.C. and D.V., former partners with two children, originally shared joint legal and physical custody. In January 2022, C.C. sought a DVRO against D.V., alleging persistent harassment, including unwanted sexual communications, distribution of explicit images, and verbal abuse. She provided extensive evidence, including text messages and emails.
The trial court issued a TRO, granting C.C.’s requests and awarding her sole legal and primary physical custody. The parties later stipulated to continue the DVRO hearing and extended the TRO, with custody matters addressed separately. In April 2023, they stipulated to a one-year restraining order after hearing (ROAH), which did not address custody. The Court did not mention Family Code section 3044.
In May 2023, C.C. filed a request to modify custody and visitation, seeking sole legal and primary physical custody due to ongoing concerns. In July 2023, the trial court ordered the parties to “continue to share custody,” effectively maintaining joint legal custody but modifying physical timeshare in favor of C.C. The court did not address section 3044 before issuing this order.
C.C. appealed, arguing that the trial court erred by awarding joint custody without determining that D.V. had overcome the rebuttable presumption under Family Code section 3044. Section 3044 establishes a presumption “that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child.” The presumption arises upon a court’s finding “that a party seeking custody of a child has perpetrated domestic violence within the previous five years against” the other party. Before awarding custody to the perpetrator, the court must explicitly find that the presumption has been rebutted.
Mootness and Future Rights of the Parties
D.V. contended that the appeal was moot because subsequent proceedings in July 2024 resulted in the trial court finding that he had rebutted the presumption under section 3044. However, the Court of Appeal exercised its discretion to address the issue, stating that the matter presented “a significant issue, which is capable of repetition yet evading review.” The Court noted that custody disputes could continue until the children reach the age of majority, and therefore, its resolution was “likely to affect the future rights of the parties.”
Issuance of the ROAH and Section 3044
The Court of Appeal held that the issuance of the stipulated ROAH constituted a judicial finding of domestic violence, thereby triggering the presumption under section 3044. The court explained:
“By stipulating to the issuance of a one-year ROAH, the parties effectively agreed D.V. had committed an act of domestic violence and—having accepted their stipulation and issued the ROAH—the court necessarily found likewise.”
The Court of Appeal emphasized that allowing parties to avoid the presumption by stipulating to a restraining order would undermine the legislative intent of section 3044. The Legislature’s purpose was “to move family courts, in making custody determinations, to consider properly and to give heavier weight to the existence of domestic violence.”
Trial Court’s Compliance with Section 3044 in April 2023
Despite finding that the presumption was triggered, the Court of Appeal concluded that the trial court did not violate section 3044 when it issued the ROAH in April 2023. The Court of Appeal reasoned that section 3044 applies when custody orders are sought and issued. Since the ROAH, pursuant to the parties’ stipulation, did not contain any custody orders, and both parties agreed that custody was “not at issue” during the DVRO hearing, the trial court did not err by not addressing section 3044 at that time.
Error in July 2023 Custody Order
However, the Court of Appeal found that the trial court erred in its July 2023 custody order by failing to determine whether D.V. had overcome the presumption before awarding him joint custody. Since the ROAH had already been issued, triggering the presumption, the trial court was required to make explicit findings under section 3044 before continuing joint custody.
Feehan v. Superior Court
Feehan v. Superior Court
9/13/2024, CA 1/3: A170984 – J. Petrou
https://www.courts.ca.gov/opinions/documents/A170984.PDF
Background
Bobby Feehan sought extraordinary writ relief from a trial court order denying them temporary visitation with minor L.S. during the pendency of their petition to establish a parental relationship under Family Code section 7611, subdivision (d). Feehan and real party in interest, Lauren Seto, were in a romantic relationship while Seto was pregnant with L.S. At that time, Seto was in a registered domestic partnership with Jude Guide, who later adopted L.S. after his birth, making Seto and Guide L.S.’s legal parents.
Feehan asserted that Feehan acted as a parent to L.S. from his birth, participating in daily childcare, living together as a family, and being involved in significant events in L.S.’s life. When Feehan and Seto ended their relationship in November 2023, Seto allegedly cut off almost all contact between Feehan and L.S.
Feehan filed a petition to determine their parental relationship with L.S. and requested a temporary order for visitation pending resolution of the parentage issue. Seto and Guide opposed the motion, asserting that Feehan was not viewed as a parental figure but rather as Seto’s romantic partner who assisted with childcare when L.S. was in Seto’s home.
The trial court denied Feehan’s request for temporary visitation, stating it did “not find authority, under the circumstances of this case to order pendente lite custody and visitation” pursuant to Family Code sections 7604 and 6436. The trial court rejected Feehan’s argument that courts have equitable authority to issue pendente lite visitation when the petitioner makes a prima facie case for parentage. Feehan then filed a petition for writ of mandate.
The primary issue was whether the trial court had the authority to grant temporary visitation rights to Feehan during the pendency of Feehan’s parentage action under the Uniform Parentage Act (UPA), specifically under Family Code sections 3022 and 3100, subdivision (a), despite the limitations argued under section 7604.
Gadbois v. Superior Court is Instructive
In Gadbois, the Court of Appeal held that trial courts have the authority to grant pendente lite visitation in paternity actions under the UPA. The court relied on former Civil Code sections 4600 and 4601, which are substantively identical to current Family Code sections 3022 and 3100, subdivision (a). The court emphasized that these provisions apply to any proceeding where custody of a minor child is at issue and that courts have broad discretion to make orders necessary for the child’s best interests.
Authority to Award Visitation Under Family Code Section 7604
Seto and Guide contended that section 7604 restricts the court’s authority to grant temporary visitation in UPA proceedings, allowing such orders only when a parent and child relationship exists under sections 7540 or 7541. They argued that because Feehan was seeking to establish parentage under section 7611, subdivision (d), Feehan was precluded from obtaining pendente lite visitation. The Court of Appeal disagreed, finding that section 7604 does not preclude courts from awarding temporary visitation in other circumstances. The statute states that a court “may order pendente lite relief” if certain findings are made but does not limit the court’s authority to only those situations. The Court of Appeal noted that interpreting the statute as exclusive would require adding language not present in the statute, which is impermissible.
The UPA Framework
The Court of Appeal examined the broader framework of the UPA, which aims to extend parental rights equally to every child and parent, regardless of marital status. The UPA allows for the establishment of parentage through various means, including receiving the child into one’s home and holding them out as one’s own under section 7611, subdivision (d).
The Court of Appeal highlighted that restricting temporary visitation to only those who qualify under sections 7540 or 7541 would contradict the Legislature’s intent to recognize and expand rights for different family structures. Such an interpretation would create an unwarranted hierarchy favoring natural parents, which the UPA seeks to avoid.
People v. Tidd
People v. Tidd
8/29/2024, CA 1/3: A167548 – J. Tucher
https://www.courts.ca.gov/opinions/documents/A167548.PDF
Background
Inthis case, the California Court of Appeal addressed whether the trial court properly admitted expert testimony from a firearms toolmark analyst, who opined that a cartridge case recovered from a crime scene was fired from the defendant’s gun. The defendant, Raymond Tidd, was convicted by a jury of assault with a firearm and discharge of a firearm from a motor vehicle.
Trial Court’s Gatekeeping Role Under Sargon
The Court of Appeal emphasized that under Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, trial courts act as gatekeepers to exclude expert testimony that lacks a reasonable basis or is speculative. The court must ensure that the expert’s opinion is founded on sound logic and that the studies or information cited adequately support the conclusion.
Expert Testimony and Methodology
The expert testified that he compared the cartridge case from the crime scene with a test-fired cartridge case from Tidd’s gun. He claimed to find “sufficient” similarities to conclude that both were fired from the same firearm. However, he admitted that his analysis was subjective, that there were “differences intermingled with the similarities in the cartridge cases,” and that he did not rely on any specific studies or evidence to support the assumption that each firearm leaves unique toolmarks.
Lack of Reliable Foundation
The Court of Appeal found that the prosecution failed to establish the reliability of the expert’s methodology because the expert did not cite any studies validating the assumption that firearms leave unique toolmarks that can be reliably matched, his subjective methodology relied on personal judgment without articulable standards, and because there was no meaningful way to validate his conclusions.
The Justice Department argued that the expert’s admission of subjectivity bridged any gap between his techniques and conclusions. The Court of Appeal disagreed, stating that acknowledging subjectivity does not absolve the need for establishing reliability under Sargon. Otherwise, a palm reader’s opinion could be admitted.
Malinowski v. Martin II
Malinowski v. Martin II
8/22/2024, CA 1/3: A167548 – P.J. Fujisaki
https://www.courts.ca.gov/opinions/documents/A167187.PDF
Background
In this partially published opinion, the Court of Appeal concluded that the trial court erred in excluding the dash cam footage on the ground that it violated the California Invasion of Privacy Act (Privacy Act), specifically Penal Code section 632, which prohibits recording confidential communications without the consent of all parties.
Mother sought to add her children as protected parties under an existing Domestic Violence Prevention Act (DVPA) restraining order against Father. The existing restraining order, issued in October 2020, protected Mother but did not include the children. During supervised exchanges of the children, Mother used a dash cam to record interactions between Father and the children, intending to provide evidence of alleged abuse.
The exchanges occurred in a public parking lot adjacent to various public buildings, and were professionally supervised. The supervisor’s role was to “observe, monitor, and document” the exchanges and ensure the children’s safety. Malinowski attempted to introduce the dash cam videos as evidence to support her request to modify the restraining order to include the children.
Governing Law
Under the Privacy Act, it is illegal to record a “confidential communication” without the consent of all parties involved (Pen. Code, § 632, subd. (a)). A “confidential communication” is defined as any communication carried on under circumstances that reasonably indicate any party desires it to be confined to the parties involved, but excludes communications made in public or circumstances where the parties may reasonably expect the communication may be overheard or recorded. (Pen. Code, § 632, subd. (c)).
The test for confidentiality is objective, focusing on whether a party to the conversation had a reasonable expectation that no one was listening or overhearing the conversation. (Flanagan v. Flanagan (2002) 27 Cal.4th 766, 772–773).
Exclusion of Dash Cam Footage
The Court of Appeal reviewed the trial court’s decision de novo and concluded that the trial court erred in excluding the dash cam videos because the communications recorded were not “confidential” under the Privacy Act.
The Court of Appeal also concluded that, under Penal Code section 632(c), these recordings were not confidential because they constituted communications “made . . . in any . . . circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.” They took place in a public parking lot adjacent to various public buildings, including a bank, city council building, and police station. The location was often bustling, and the interactions frequently involved loud and unruly behavior from the children, which attracted attention from bystanders. Because the exchanges occurred in such a public setting, any communications made there are not considered confidential under the Privacy Act.
Considering the public nature of the setting and the presence of a supervisor tasked with documenting the exchanges, Father should have reasonably expected that his communications might be overheard or recorded. Both statutory and case law support this understanding, stating that a communication is not confidential if the parties may reasonably expect it to be overheard or recorded (Pen. Code, § 632, subd. (c); Flanagan v. Flanagan, supra, 27 Cal.4th at pp. 776–777).
There were also indications that both Father and the supervisor were aware of the recordings. The supervisor testified that she knew about the dash cam in Mother’s car. Additionally, Father had been requesting the production of the videos since April or May 2021, which suggests that he was aware of the recordings.
Exceptions Under Penal Code Sections 633.5 and 633.6 Did Not Apply to Mother
Author’s Note: Even though bolded, the rest of the “holdings” in this case are probably dicta.
Mother argued that even if the communications were confidential, exceptions under Penal Code sections 633.5 and 633.6 applied. The Court of Appeal disagreed.
Penal Code Section 633.6 (a) allows a DVRO to include a provision permitting the victim to record any prohibited communication made by the perpetrator. However, the Court found that this exception did not apply in the present case because the existing restraining order did not prohibit Father’s communications with the children; it only protected Mother. Additionally, the children were not included as protected parties under the restraining order, and Father was permitted to have contact with them for visitation purposes.
Penal Code Sections 633.5 and 633.6, Subdivision (b) permit the recording of confidential communications if the recorder reasonably believes that the communication relates to certain crimes, including felony domestic violence. It also permits recording that is germane to an anticipated DVRO request. The Court of Appeal applied the objective test established in In re Trever P. (2017) 14 Cal.App.5th 486. This case held that “in order for a parent to make a surreptitious recording of their child with another for the purpose of gathering evidence of abuse, the parent must have ‘a good faith, objectively reasonable belief that the recording is in the best interest of the child.’” The Court of Appeal concluded that Mother did not meet this test, as there were no specific facts demonstrating an objectively reasonable belief that recording the supervised exchanges was necessary at the time she began recording. Furthermore, the children were not included in the original restraining order, and subsequent family court proceedings had monitored and increased Martin’s visitation rights.
Ultimately, the Court of Appeal declined to interpret the exceptions under Penal Code sections 633.5 and 633.6 so broadly as to allow unlimited recording based on past incidents involving Mother and the grandfather. The court emphasized that without a specific, objectively reasonable basis for believing that the recordings were necessary for the best interest of the child, the exceptions did not apply to permit the recording of the supervised exchanges.
The Court of Appeal clarified that while the exceptions under Penal Code sections 633.5 and 633.6 did not apply in this case due to the lack of an objectively reasonable belief that recording was necessary, the exclusion of the evidence was improper because the recordings did not capture confidential communications in the first place.
Author’s Note: The conclusion that it was not in the best interests of the children to surreptitiously record father because they were not included in the original restraining order and because subsequent family court proceedings had increased Father’s visitation rights arguably conflicts with other important principles. The Legislature has declared “that children have the right to be safe and free from abuse, and that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the health, safety, and welfare of the child.” (Fam. Code, § 3020.) Further, “[s]tudies show that violence by one parent against another harms children even if they do not witness it.” (In re R.C. (2012) 210 Cal.App.4th 930, 942.) Moreover, “[d]omestic violence in the same household where children are living … is a failure to protect [the children] from the substantial risk of encountering the violence and suffering serious physical harm or illness from it.” (Id.) If confronted with a similar situation, I’d mention these points of law and argue that the contrary conclusion in this case was dicta.
City of Los Angeles v. PriceWaterHouseCoopers, LLP
City of Los Angeles v. PriceWaterHouseCoopers, LLP
8/22/2024, CASCT: S277211 – J. Kruger
https://www.courts.ca.gov/opinions/documents/S277211.PDF
In this case, the California Supreme Court reversed the Second District, Division Five in this opinion concerning sanctionable conduct under the Civil Discovery Act.
Code of Civil Procedure section 2023.030 provides that a court may impose sanctions “against anyone engaging in conduct that is a misuse of the discovery process.” Similarly, Code of Civil Procedure section 2023.010 also references “[m]isuses of the discovery process.” The Court of Appeal held, however, that “[t]he plain language of the statutory scheme does not provide for monetary sanctions to be imposed based solely on the definitional provisions of sections 2023.010 or 2023.030.” The Court of Appeal reversed and remanded. Our Supreme Court disagreed, holding that “[u]nder the general sanctions provisions of the Civil Discovery Act, Code of Civil Procedure sections 2023.010 and 2023.030, the trial court was not limited to imposing sanctions for each individual violation of the rules governing depositions or other methods of discovery. It could indeed rely on the definitional provisions in sections 2023.010 and 2023.030.