Family Law News Monthly

DEPENDENCY (current through 3/20/2023)By:  John Nieman The precise holdings in a given case are bolded. A.H. v. Superior Court A.H. v. Superior Court03/17/2023, CA 4/3: G061648https://www.courts.ca.gov/opinions/documents/G061648.PDF See summary under FAMILY LAW In re N.M. et al. In re N.M. et al.3/2/23, CA 2/1 B315559https://www.courts.ca.gov/opinions/documents/B315559.PDF Father appealed the granting of sole physical custody upon dismissal. Jurisdiction was originally based upon mother’s driving under the influence of alcohol with a child in the car. Father and mother lived apart then, mother lived… Read more

FAMILY LAW (current through 3/20/2023)By:  Andrew Botros, CFLS The precise holdings in a given case are bolded. In re Marriage of Cohen In re Marriage of Cohen2/16/2023, certified for publication on 3/20/2023, CA 4/3: G060697https://www.courts.ca.gov/opinions/documents/G060697.PDF The Motion to Dismiss in the Trial Court In this case, Husband’s request to modify child support and spousal support was dismissed under the disentitlement doctrine. This part of the order was affirmed. The Court of Appeal first addressed the fact that the trial court… Read more

In this case, the trial court erred in two respects when it signed husband’s QDRO. First, it erroneously used husband’s rank and salary at the time of the parties’ separation to calculate the community interest in his pension instead of his final rank and salary at the time of his retirement, as required by the time rule. This was error because “[u]nder the traditional time rule, the fraction of service during marriage divided by total service must be ‘multiplied by the final plan benefit to determine the community interest.’” and “because the community property interest at issue—the right to retirement benefits—'is a right to draw from a stream of income Read more

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 https://www.courts.ca.gov/opinions/documents/D079123.PDF 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… Read more

As to Mother, the Court of Appeal, in dicta, suggested that the trial court could not issue Family Code section 271 sanctions pursuant to its own motion. It noted the absence of such language in Family Code section 271, while also noting that other sanctions statutes explicitly indicate that the trial court could issue sanctions on its own motion. It further noted that in “order to obtain an award under [Family Code section 271], the party requesting an award of attorney’s fees and costs is not required to demonstrate any financial need for the award.” (Emphasis in original.) Read more

The voluntary dismissal of a joinder complaint does not divest the trial court of jurisdiction to award sanctions under Family Code section 271. Although most orders entered after dismissal are void and have no effect, an exception to this rule includes motions related to attorney fees and sanctions. Applying this rule in this manner is consistent with section 271, which is designed to punish parties who have unreasonably increased the cost of litigation. Read more

This was a challenge of the denial of a pendente lite fee order under Family Code section 2030. Though the appellant made a pendente lite fee request, the trial court did not rule on the issue of attorney fees until the conclusion of the trial. The appellate court concluded that the trial court violated Family Code section 2030 by not ruling on the appellant’s attorney fee request, as the statute requires a reasonably prompt ruling on such a request. The failure was prejudicial because the self-represented appellant failed to have a grant deed that would have established a transmutation in her favor admitted during the trial. The appellate court further concluded that, if the appellant was represented by counsel Read more

This is an Indian Child Welfare Act case where inquiry and notice were not properly effectuated in the trial court. After termination of parental rights, the Department (of Children and Family Services) conducted the further ICWA inquiry as required and submitted its findings to the juvenile court and the juvenile court made findings that ICWA noticing and investigation was completed and that the ICWA was inapplicable. Subsequently the Department petitioned to supplement the record with that finding and moved the appellate court to dismiss the appeal as moot. The Appellate court declined. Read more

This case involves domestic violence between the parents in the children’s presence. After an initial voluntary services period, and another incident which father reported to their worker, and an executed adjustment, the Department filed a petition and detained the children. The juvenile court also Read more

During post-permanency (after a permanent plan is chosen following termination of efforts to reunify children with their parents*), mother filed a Welfare and Institutions Code (W&I) §388 petition for additional reunification services. Read more