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A recently tragic case has been decided by California’s appellate court, involving the Indian Child Welfare Act (ICWA), two poor Native American children and their desperately indigent parents.  In its ruling, the appellate court justices affirmed a juvenile court ruling stating that the juvenile court did not err when it concluded that adequate ICWA notice had been given to applicable tribes, and that the ICWA did not apply, where tribes stated that filing additional notices would be futile and the two children could not be tribal members because their mother claimed Indian heritage through former freed slaves of the tribe.

The pertinent facts of the case In re D.N. (8/14/13) 2 Civ B245303, Div 4 (Epstein), are:  in June of 2010, the Los Angeles County Department of Children and Family Services (DCSF) filed dependency petitions that sought to have the two children (Child1 and Child2) of Mother and Father adjudged dependents of the juvenile court, based on Mother’s long history of substance abuse and Father’s failure to provide for his biological child, Child2.  Father was presumed to be the father of both Child1 and Child2.  Upon Mother claiming to have Choctaw Indian ancestry, the juvenile court ordered DCSF to send ICWA notices to appropriate Choctaw tribes as well as to the Bureau of Indian Affairs (BIA).

In July of 2010, DCFS sent notices to three (3) Choctaw tribes, the BIA, and the U.S. Department of the Interior, each of which listed Mother’s father and paternal grandmother as Choctaw.  Initially, Father had claimed Cherokee ancestry, but could provide no names of relatives who could provide any semblance of verifying information.

Although the juvenile court ordered DCFS to send notices to Cherokee tribes and the BIA.  DCFS reported that Father had failed to cooperate in that effort.  Father’s attorney stated on record in Father’s presence that “Dad says he’s got no ICWA.”  The juvenile court then made findings that ICWA did not apply to Father, that Father had rescinded his prior claim of Cherokee heritage, and the dependency petition should be sustained and amended.  The juvenile court placed the children with Father and transferred their case to another department.

In January of 2011, the DCFS filed a supplemental petition, alleging that Father was unable to provide for his two children.  The juvenile court ordered the children to be detained and placed them in foster care.  This juvenile court was unable to determine whether adequate ICWA notices had been given and ordered DCFS to file the responses it had received from the Cherokee and Choctaw tribes.  DCFS advised the juvenile court that ICWA had previously been found not to apply to Father and that three Choctaw tribes had found that neither child was eligible for tribe membership.  The juvenile court still ordered the case continued so that DCFS could send proper ICWA notices to the involved tribes.

In March of 2011, the DCFS sent new notices to the three Cherokee tribes, the Choctaw tribes, and the BIA.  One month later, the juvenile court sustained the supplemental petition, ordered both children removed from Father’s care, and ordered reunification services for Father and Mother.  But the juvenile court stayed those orders pending responses to ICWA notices.

In June 2011, DCFS re-sent the ICWA notices.  Between March 2011 and June 2011, DCFS received responses from all noticed tribes.  They all stated that the two children were not eligible for tribal membership.  The Cherokee Nation, along with its response, sent additional information from its files regarding Mother’s ancestors.  Nevertheless, the juvenile court found that the notices were incomplete because they did not include that information and ordered DCFS to send new notices using the parents’ birth certificates.

In September, the DCFS sent new ICWA notices that included the children’s, Mother’s, and Father’s birth certificates, along with additional information regarding Mother’s and Father’s ancestors.  In response, the Cherokee Nation requested additional information re father’s ancestry.  In the meantime, Father visited with the children only once, and had not contacted the DCFS in nearly a year.  DCFS then informed the Cherokee Nation that it could not provide any additional information.  Later, in response to all the September notices, all the tribes responded negatively regarding the children’s eligibility re tribal membership.

In January of 2012, Mother, at her hearing, submitted her aunt’s tribal enrollment number, which the DCFS later gave to the Choctaw Nation by letter and by phone.  The Choctaw Nation, in response, again stated that the children were not eligible for tribal membership.  They added:  “The Choctaw Nation has exhausted all resources and we have determined ICWA will not and does not apply, the tribe feels that we have done a thorough job and sees no reason to continue any further inquiries.”  In a follow-up e mail, the Choctaw Nation emphasized that they will not spend any more time on this case as “it is futile.”  The Choctaw Nation closed by reminding the DCFS that “eligibility for membership is determined by the tribe” and its decision “is entitled to deference and full faith and credit.”

The following month, the juvenile court in Los Angeles found that proper ICWA notices had been sent to the Cherokee tribes.  However, after Mother had submitted information to the effect that her ancestors were listed on the Choctaw Nation Freedman Role, the juvenile court considered sending a further notice to the Choctaw Nation.  Upon the DCFS reminding the juvenile court of the Choctaw Nation’s latest responses, the juvenile court found that adequate notice had been given and that the ICWA did not apply in this case.

Mother continued her efforts to get the children enrolled in the Choctaw tribes, but the juvenile court declined to give her any more time to do it.  The juvenile court then terminated Mother’s and Father’s parental rights and set adoption as the permanent plan for the children.  Both Father and Mother appealed, but California’s Second Appellate District affirmed.

In its holding the panel found that:

  1. That DCFS did attach adequate documentation of Mother’s ancestry to notices sent to the Choctaw tribes;
  1. Mother’s ancestors’ listing on tribal freedom rolls does not help Mother’s pursuit of tribal membership for her children because those rolls list former slaves of the Choctaw tribes who were freed after the Civil War but did not have blood ties to the tribe; and
  1. the Choctaw Nation made it clear that only those with blood ties to the tribe may be eligible for tribal membership.

And two more children were removed from their parents, and devoured up by the system.


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Having a successful marriage is a difficult proposition at best.  Marriages can be filled with the same duality of ups and downs that we face as individuals going through life.  Gay marriages offer the same pendulum of give and take, compromise and communication as their heterosexual counterpart, but they too more often than not end up in divorce.  And same-sex divorces might be even tougher these days than the marriage themselves.

This is due in large part to the fact that gay marriage is legal in only thirteen (13) states in our union and the District of Columbia.  So if a same-sex couple lives in one of the other 37 states, and wants to marry, they have to go to DC or one of the legal 13 to marry, then they return to their home state to live happily ever after, right?  Well, it’s not always that simple.  Many times, these couples face the realities of a marriage gone awry, and the parties decide to part and go their own ways.  But how do they divorce legally since their state doesn’t even recognize their marriage as being legal in the first place?

Thousands of couples potentially face this issue right now.  To obtain a divorce they would need to go back to a state that recognizes their legal right to marry and then establish legal residency there.  Or the state might impose other onerous requirements for their divorce.

Recent statistics indicate that same-sex couples divorce at half the rate that heterosexual couples divorce.  That figure is expected to rise as more gay couples seek divorce, and the states’ laws likely catch up with that rise.

The key to all this is to be smart.  And here’s four tips on how to be smart regarding same-sex marriages and divorce:

1) Before marriage, consult an experienced family law attorney When it comes to marriage and divorce, whether same-sex or heterosexual, there truly is nothing more important than a professional who is looking out for your best interests. Certified family law specialists are just that: family law specialists. Find one who can handle complex issues like estate planning and custody. There are also organizations such as Lambda Legal and the National Center for Lesbian Rights who can provide information.

2)      Consider creating a pre-nuptial (or a postnup, which is recognized in most states) agreement.  A written agreement between wedding parties can be important to help detail ownership of assets accrued by and between the parties during their relationship.  The truth is, all money and property issues can be settled without the need of a court or a judge.  All the parties have to do is sit down and agree to who owns what and who gets what in case of a split.  Such agreements are legally recognized in every state.  And even if the state you’re living in doesn’t recognize same-sex marriages, ancillary matters such as financial issues can be settled which would allow the parties to move forward while awaiting the legal drama of their divorce to play out.

3)      If possible marry in one of the states or other jurisdictions that grant divorces without onerous residency requirements.  California is one of those states.  So are Minnesota, Delaware, and Washington D.C.

4) Regarding potential child custody issues, if either party should have a child during wedlock, the non-biological parent might consider legally adopting the child at the time of birth. Even if the same-sex marriage is not legally recognized by that state, the state will recognize the legality of the adoption.

Again, as in any legally binding relationship, homework and due diligence are important.  Know what you’re doing before you enter into legally binding contracts such as marriage.  Consult with a family law specialist.  Know the laws of the states you’re dealing with.  Be smart.  And build a legally and fundamentally strong foundation that will bring peace to you and your soon-to-be family.


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Just when you thought you might not be able to afford to get a divorce, this just in: improving economy and housing market make getting a divorce affordable, again.  Oh, joy.  It’s time to break up the family, because, well, we can afford to.

According to the Los Angeles Times, the improving economy and booming housing market have prompted more people to get divorced.  Yay for them.  Money, or a lack thereof, no longer needs to lead to unhappiness.  Instead, couples may now divorce a little easier than before.

According to the article, the recession had caused many couples to stay together because their homes were a financial mess or one or both parties were out of work.  When the recession had hit, home prices plummeted, home equity became scarce, and couples had fewer assets to play with.  Divorcing couples faced greater financial loses.  But now, the housing market is in a rebound, and interest rates are at historical lows.  Couples are experiencing new wealth they can now use to divorce from each other.

Rising inflation and falling housing prices put pressure on marriages and help to contribute to higher divorce rates.  The same factors also apply to making divorce more complicated.  Falling property prices mean that selling the family home may not provide sufficient funds for two separate homes, especially with lenders being so much more selective in who they lend to.


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In an important recent decision, California’s Second District Appellate has held that a trial court had erred with its findings under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) regarding a more convenient forum without giving the parties the opportunity to present evidence on that issue per California Family Code §3427(b).

In the case of Brewer v. Carter (218 Cal.App.4th 1312, 160 Cal.Rptr.3d 853), Mother had given birth to Father’s Child in April of 2010.  The three lived together in Los Angeles until June 2011, when Mother took Child to Chicago for a family visit and never returned.  In August, Father, representing himself in pro per in court, filed a petition to establish his paternity of Child and for custody and visitation orders.  Wife tried to file a response, but a court clerk erroneously rejected her filing.

In September, Father filed a request to enter Mother’s default, but it too was rejected, this due to an improperly completed proof of service.  In December, Mother filed a paternity action in an Illinois trial court, which Father was unaware of.  Having relied on faulty legal advice, Mother believed that she did not need to file a response to Father’s case in California since her Illinois case was already pending.

The California trial court in Father’s case entered Mother’s default and scheduled a default prove-up hearing for June 2012.  At that hearing, Mother moved to set aside her default on grounds of mistake and excusable neglect.  She also served Father with her Illinois action.  Noting the Illinois action, the California trial court continued Father’s case until August 2012.

In the meantime, Mother filed a response in California, therein admitting that Child was conceived in California, and stating that her residence was in Illinois, where a case was currently pending.  She requested sole custody of the couple’s Child and reasonable visitation for Father.  Mother also claimed that she could not afford the cost of telephone service to appear at the August hearing.

At the California August hearing, the trial court set aside Mother’s default.  The court stated that it had communicated with the Illinois trial court and determined that Child’s home state was Illinois, not California, because the infant had not lived in California for six continuous months prior to Father filing his paternity action.  Therefore, the trial court concluded, the Illinois trial court should make custody determinations regarding the Child.  The trial court then continued the matter to October to permit Father to file a response and to allow further discussions with the Illinois trial court.  After those discussions, the Illinois trial court agreed that it should exercise jurisdiction in this case under the UCCJEA.

In August 2012, Father moved the California family law court for reconsideration.  In its ruling issued on October 1st, the trial court denied Father’s motion as not having been based on new law or facts.  However, the court did apply different reasoning on the jurisdictional issue and concluded that a trial court may, on its own motion, decline to exercise UCCJEA jurisdiction if another state is a more appropriate forum and California is an inappropriate forum.  The court determined it likely that there was relevant information in Illinois regarding Child’s medical providers and that the Illinois trial court was in a better position to determine the child’s best interests.

Father then appealed.  And California’s Second District reversed and remanded.

In its decision, the panel explained that under California Family Code §3421(a)(1), a trial court has UCCJEA jurisdiction if California was the child’s home state when the custody action was filed, or within six months of filing if the child is absent from the state, but one of the child’s parents continues to live in California.  Moreover, Family Code §3420 defines “home state” as the state where the child lived with a parent for at least six consecutive months immediately prior to the filing of the custody action.

In this case, as the trial court had belatedly determined, the trial court had UCCJEA jurisdiction over Father’s paternity action because Child had been out of California for only 72 days before the action was filed and Father continues to live in this state.  The appellate court justices noted that Illinois UCCJEA law is the same on this issue; thus, the Illinois trial court should have declined jurisdiction due to the pending California custody proceeding.

The panel further stated that the UCCJEA encourages “communication between the courts” regarding which has jurisdiction, and this was done in this case.  However, when the parties do not participate in those conversations, California Family Code §3410(b) requires the trial court to give them an opportunity to present facts and arguments before it makes its decision re jurisdiction.

The justices also noted that Family Code §3427 permits a trial court to decline to exercise UCCJEA jurisdiction if it determines that it is an inconvenient forum and another state is a more appropriate forum.  The panel stated that before a trial court makes that decision, it must consider all relevant factors, after permitting the parties to submit information on those factors.  Some of the factors to consider might be:

  • The length of time that the child has been in the other state
  • The distance between the two courts
  • The financial hardship to the parties, and

The degree to which each court is familiar with the facts and issues in the case.