CUSTODIAL PARENT CAN “MOVE-AWAY” WITH CHILD IF FACTORS MET

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An important case has recently come down wherein it was determined that a California family law trial court failed to understand the findings it was required to make in deciding a “move-away” motion by a custodial parent.  As a result, in the case of F.T. v L.J. (2011) 194 CA4th 1, 123 CR3d 120, California’s Appellate Court ruled the trial court improperly denied the father’s request to move out-of-state.

The facts of the case are as follows:

The couple dated briefly, but they were unmarried at the time of the birth of their Child.  At first, the Child lived with his Mother.  When Child was a little over a year old, Mother deliberately burned him with a hot curling iron.  Father filed for a paternity action, and as a result, he became the primary custodial parent, with Mother initially having only supervised visitation.  Through the course of several evaluations and mediations, the parties stipulated to a series of temporary orders.

Father initially wanted to move to Texas with the couple’s Child.  But when the Child was four (4) years old, Father sought to move to the state of Washington, where his new wife had a business and lived with her two children.  When a custody evaluator recommended to the trial judge against the move due to concern regarding the damage that would ensue to the Child’s relationship with his Mother and Stepfather if the Father moved Child to Washington, the trial court denied Father’s request to move.  And Father appealed.

California’s Court of Appeals reversed the trial court’s erroneous order.  It held that the trial court had misunderstood the factors that needed to be weighed in evaluating a “move-away” for a custodial parent.  Father had argued that as the primary custodial parent, he had a presumptive right to move with the child.  The appellate court responded that, because no permanent custody orders had ever been made, there was no such presumptive right, and the best interest standard must be used.

However, the appellate court went on to state, the trial court appeared to misunderstand the factors that are to be used in determining a child’s best interest.  Specifically, the trial court did not make any orders to accommodate the Father’s proposed move, and the record showed that the court assumed that the father would not move if his request were denied.

It was also decided that the trial court had incorrectly determined that Father’s reason for moving was insufficient, even though a custodial parent is not required to show that a proposed move is “necessary.”  Lastly, the appellate court reasoned that the trial court gave too much weight to the probable disruption of the Child’s relationship with his Mother, which was only one factor to be considered.

SB 115 KEEPS FATHERS IN GAME FOR ARTIFICALLY REPRODUCED CHILDREN

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California State Senator Jerry Hill has introduced a new piece of legislation that he claims will help children to better maintain relationships with their mother and father.  SB 115 will help protect a child’s relationship with their parents whether the child was conceived by artificial reproductive technology to unmarried parents who always intended to parent, who did in fact serve as parents, and never waived their parental rights.  However, one of the drawbacks is that the bill only protects the relationship between a child and their father when the father has assumed the role of his child’s father, acted as his child’s father, and helped to raise and care for his child, all being done with mother’s consent.

One of the major reasons for the introduction of SB 115 is that California’s family law code precludes men who use assisted reproductive technology from being considered the fathers of the children they helped conceive, absent a written agreement signed before conception.  The original provision was written two years ago by Senator Hill with the intent of protecting women who use donated sperm to get pregnant, but do not want the donors involved in their children’s lives.  It was also intended to protect sperm donors, who are often anonymous and do not want to be held liable for child support.  These important protections will remain intact under SB 115.

Basically, again, the stated intent of SB 115 is to clarify that the original law was never intended to deprive children of their fathers when their father always intended to parent, did in fact parent (with the child’s mother’s consent), and never waived their parental rights.

DATES SERVICES RENDERED KEY TO MILITARY/CIVILIAN RETIREMENT AS SEPARATE PROPERTY

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An interesting case was recently decided regarding retirement credits involving military and civilian work.  In reversing the trial court, in this case, California’s Supreme Court held that four (4) years of additional retirement credits, which Husband was eligible for through premarital military service, are his separate property, minus the funds used to reimburse the community for funding the purchase of those credits.  The key to the court opinion in the case of In re Marriage of Green (2013) 56 Cal.4th 1130, 158 Cal.Rptr.3d) was the dates those services were rendered.

The facts of the case were determined as follows:  Prior to the parties being married, Husband served in the U.S. Air Force from July 1982 through May of 1986.  In June of 1989, he began working as a firefighter for a regional fire authority in Dublin, California.  This made him eligible to participate in CalPERS, the California Public Employees’ Retirement System, which in turn made him eligible to purchase up to four years of service credit toward his retirement benefits because of his military service.

Husband married Wife in May of 1992.  In 1997, the regional fire district Husband worked for merged with the Alameda County Fire Department, and Husband continued working for the newly created department.  He also continued his participation with CalPERS.  In August of 2002, Husband exercised his right to purchase four years of credit based on his military service, which he elected to pay through twice-monthly payroll deductions of $92.44, until July 2017.  Those deductions accrued to a total of $11,462 in community funds at the time the couple separated on October 1, 2007.

Wife filed for divorce in March of 2008.  At trial, a major issue for the court was whether it should characterize Husband’s military service credit as community property or separate property.  The trial court determined the credit to be Husband’s separate property, but it also ordered him to pay $6,699 to Wife for half of the community property payroll deductions made to purchase the credit, plus 6% interest thereon.  Wife appealed the trial court’s decision.

California’s First District Appellate Court reversed the trial court’s ruling.  It found that the service credit was community property due to the fact it had been purchased during the marriage using community funds.  The California Supreme Court granted review and reversed the First District.

In reaching its decision, the California Supreme Court considered many cases dealing with facts that differed from those in this case.  In their opinion, the justices noted that the rule to be applied to all these different legal and factual scenarios was derived from Hogoboom & King, California Practice Guide: Family Law as follows:  “Pension and retirement benefits are a form of employment compensation and thus tantamount to ‘earnings.’  As such, regardless of when the benefits ‘vest’ or are received, they are characterized in accordance with the employee’s marital status at the time the services were rendered; i.e., the benefits are community property to the extent attributable to employment during marriage.”

The key to this decision, obviously, is that retirement benefits in California are to be characterized according to the employee spouse’s marital status at the time the underlying services were rendered.

CUSTODY ORDER ISSUED AFTER REMOVAL OF CHILD DOESN’T AFFECT VALIDITY OF REMOVAL UNDER HAGUE

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An important case was recently decided by the U.S. Court of Appeal for the Fourth Circuit, wherein it was held that trial court changes to child custody orders that are issued after a parent removes a child from the child’s habitual residence do not affect the validity of the removal under the Hague Convention.  Wrongful removal must be based on custody rights existing at the time of removal.

In the case of White V. White (2013 WL 2284877 – F.3d __, 2013 FA 1593), the Fourth Circuit affirmed an order, which denied the petition for return.  The pertinent facts of the case are as follows:  Husband and Wife were married in Switzerland in 2009.  A Son was born to them later that year.  In June 2010, Husband and Wife separated and Husband initiated legal proceedings in Switzerland pertaining to the separation, including the rights to the couple’s Son.  In October 2010, the Swiss Court in Geneva authorized Husband and Wife to legally separate, while custody was granted to Wife.  Visitation was also granted to Husband, “two afternoons each weekend, to be expanded to one weekend in two, in agreement with the curator when the time comes.”

That same court later ordered court-appointed psychologists to evaluate all three family members for custody purposes.  That evaluation had not been completed, when, on April 24, 2011, Wife left Switzerland with the couple’s Son.  Wife later testified that they headed for the U.S. where she had intended to visit her sister and obtain medical treatment for the Son, whom Swiss doctors had evaluated as autistic.  U.S. doctors later diagnosed Son as having a “feeding disorder,” and they began treatment shortly thereafter

Since entering the United States, Wife and Son had been continuously in the U.S. but for a brief visit to Canada.  In July 2011, when Wife and Son had been in the country for three months, Swiss court-appointed psychologists issued a preliminary report suggesting Wife had “psychological problems, which affected her ability to properly care for her son,” and that the court should transfer custody of the child to Husband if her condition did not improve after six months.

In September of 2011, a Swiss trial court issued an emergency ruling that prohibited Wife from removing Son from Switzerland.  However, in December, that same court found that it did not have jurisdiction to make such an order because Wife and Son no longer resided in Switzerland.

The following February, the Swiss tutelary court in Geneva also found that it lacked jurisdiction.  In it’s ruling, the court noted that Wife having sole custody gave her the right to remove the parties’ Son from Switzerland without prior court approval.

Upon learning that Wife and Son were now living in Alexandria Virginia, Husband brought this action in the U.S. District Court for the Eastern District of Virginia.  On April 6, 2012, Husband filed a petition under the Hague Convention, as implemented in the U.S. by the International Child Abduction Remedies Act.  In his petition, Husband claimed that mom had wrongfully removed their Son from Switzerland, and he was seeking Son’s return to Switzerland.

In June, the court found that Husband failed to establish that his Son’s removal had breached any of his custody rights, and it denied his petition.  Husband appealed, and the parties filed their appellate briefs in late 2012.  The Court of Appeals heard oral argument on March 20 of 2013.

While the appeal was pending in the Fourth Circuit, a Swiss appellate court found the trial court did have jurisdiction to rule on protective measures for Husband and Wife’s Son.  Following that finding, the Swiss trial court adjusted its earlier custody arrangements by granting to Husband sole custody of Son, with visitation rights to Wife.  Due to the undisputed fact Switzerland was Son’s habitual residence before his removal to the U.S., Swiss law applies to whether or not there was a breach of rights.

Acting on Husband’s appeal, and against Husband’s interests, the Fourth Circuit affirmed the District Court.  The appellate court justices explained that a removal or retention of a child from his or her habitual residence is considered wrongful under the Hague Convention and the International Child Abductions Remedy Act if it breaches the custody rights of the non removing parent.

In this case, there was no question that Husband’s and Wife’s habitual residence prior to the removal was Switzerland.  Therefore, the appellate court was caused to focus on whether Husband had custody rights that were breached at the time Wife took Son to the U.S.  The appellate court found that the 2010 custody order awarded to Wife custody and granted to Husband visitation rights only.  And under the Hague Convention, visitation rights equal a “right of access,” which has been defined as the “right to take the child for a limited period of time to a place other than the child’s habitual residence.”  The appellate court further noted that a right of access, by itself, will not support an order for a child’s return.

…In its ruling the court held that the only reasonable reading of the Hague Convention is that a removal’s wrongfulness depends on the rights of custody at the time of the removal.  Removal could not be considered in breach of rights of custody if those rights did not exist at the time of removal.  Moreover, the Hague Convention explicitly provides that removal is only wrongful when” at the time of removal (custody) rights were actually exercised…or would have been so exercised but for the removal.”

In conclusion, the appellate court held that the determination of whether removal is wrongful is based on rights of custody at the time of removal.  The Swiss court’s 2013 order did not act to reject the authenticity of, or retroactively alter, the previously governing October 2010 order granting to Wife sole custody of Son.  Therefore, the order put into effect in October 2010 was determined to be controlling in this case.  Wife keeps son in U.S.  Husband pays lots of legal bills from Switzerland.  And, most probably, not the end to the story.