Recent Family Law Cases (current through 3/21/20)
[Opinions available at: http://www.courts.ca.gov/opinions-slip.htm]
By: Stephen D. Hamilton, CFLS
Fellow, American Academy of Matrimonial Lawyers
Child Custody & Visitation/Hague Convention
Monasky v. Taglieri
2/25/20, USSCT: 140 S.Ct. 719
A child’s habitual residence depends on the totality of the circumstances specific to the case, not on categorical requirements such as an actual agreement between the parents. Further, a trial court’s habitual-residence determination presents a mixed question of law and fact that is heavily fact laden. he habitual residence determination is therefore to be reviewed under the clear-error review standard.
Wilkin v. Nelson
2/26/20, CA 2/6: B294530
Son filed probate petition requesting his deceased mother’s community and separate assets be transferred to her trust. Widower sought reformation of pour-over will so only decedent’s separate property be declared trust property. TCT entered judgment reforming will as requested by widower. Affirmed in part. Under Estate of Duke (2015) 61 Cal.4th 871, “substantial evidence supported the probate court’s decision to equitably reform the pour-over will” based on evidence regarding the decedent’s actual and specific intent at the time the will was drafted to only transfer her separate property to the estate. “The will as drafted contains a mistake in the expression of [decedent’s] intent.” Based on absence of any evidence decedent intended “to include community property assets in her estate plan, it was reasonable for the probate court to interpret the evidence of her intent as it did.” Accordingly, it was within the probate court’s discretion to reform the pour-over will. The appeal of the attorney fees awarded to widower for expungement of a lis pendens was dismissed as non-appealable.
In re Justin O.
3/2/20, CA 2/1: B287406
DCFS filed petition to remove grandchildren from their grandmother’s care. Grandmother asserted she was entitled to de factor parent status. TCT sustained petition and denied grandmother’s request for de facto parent status. Reversed. TCT erred in denying grandmother de factor parent status and “compounded the error by refusing to allow Grandmother an opportunity to present evidence or argument at the purported “hearing” on the section 387 petition.” In the TCT, DCFS asserted grandmother had unclean hands based on allegations she had been physically abusive with the children. “The fact that DCFS alleged Grandmother committed physical abuse did not warrant excluding Grandmother from participating in a hearing in the section 387 petition.” CtA also found that “the juvenile court proceeding in which the court sustained the supplemental section 387 petition cannot be characterized as [the mandatory] contested hearing [required] to resolve factual disputes.” CtA also found appeal was not moot even though grandmother was not seeking return of the children. “We disagree because respondent ignores the potential, serious consequences of sustained findings of physical abuse.”
M.G. v. Super. Ct.
3/16/20, CA 4/3: G058611
TCT terminated reunification services for M and F at WIC 366.26 hearing. Parents appealed, asserting there was insufficient evidence the children would be at risk in their care. Reversed. CtA first commented about the need to conduct the 18-month hearing after removal in a timely manner, not the 29th month as occurred in this case. CtA then held the TCT erred in setting the 366.26 hearing. Social services needed to establish releasing the children to the parents would “create a substantial risk of detriment to the protection, or physical or emotional well-being of the child[ren]” by clear and convincing evidence before terminating reunification. “Here, substantial evidence does not support the juvenile court’s finding of detriment.”
In re N.D.
3/16/20 CA 2/6: B300468
F requested reversal of TCT’s dispositional order removing children from his care and placing them in foster care under WIC 361(c)(1) based non-compliance with ICWA inquiry and notice requirements. Conditionally reversed and remanded for limited purpose of ICWA compliance. CWS had continuing duty to inquire whether children were or may be Indian children as it had notice the children might be Indian children. The TCT was not authorized to proceed with foster care placement until an ICWA notice was sent and received.
In re Andrew M.
3/20/20 CA 2/3: B294704
F appeals from order removing child as the TCT did not appoint counsel for F “despite his numerous requests” made at six of the nine hearings held in the matter. Reversed. Absent a knowing and intelligent waiver of counsel, the TCT must appoint counsel for an indigent parent if out-of-home placement is sought. F in this case was incarcerated. He therefore “had the right to anticipate representation at the jurisdiction hearing after he requested counsel be appointed and opted not to appear himself.” “We recognize that father will continue to be incarcerated until Andrew reaches the age of majority. Nonetheless, that is not a justification for failing to appoint father an attorney to advocate for his participation in services and visitation with the child”
Siry Investment v. Farkhondehpour
3/3/20, CA2/2: B277750
After defendants committed multiple discovery abuses, TCT issued a terminating sanction and allowed matter to proceed by default prove-up. Defendants appealed, arguing that because the discovery they failed to respond to did not address all the issues in the case, terminating sanction was not appropriate. Affirmed. “We conclude that a trial court is not foreclosed from issuing terminating sanctions just because the underlying discovery encompasses only a subset of the issues in the case.” Although “terminating sanctions are the most “drastic” penalty, they are typically a “last resort” to be “used sparingly[,]” the defendants “contumaciously” refused to provide discovery responses, had “a fulsome history of discovery abuse[,]” and engaged in “willful and, worse yet, calculated”conduct intended to frustrate and evade the discovery process.