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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  The juvenile court then made findings that ICWA did not apply to Father, that Father had rescinded his prior claim of Cherokee heritage, and the dependency petition should be sustained and amended.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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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.


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Another important recent decision involving jurisdiction in family law court in California is the case of Mark T. v Jamie Z (2011 194 CA4th 1115).  In this case, the appellate court ruled that a trial court, in denying a mother’s request to relocate out of state with the parties’ Child, abused its discretion by misapplying the pertinent legal standards, because, although it purported to consider the child’s best interest, it failed to take into account that the parent would actually move regardless of how the court ruled.

The facts of the case were that after the Child’s paternity was established, the trial court made a temporary custody order on the basis of the parties’ stipulated time-sharing arrangement.  Before the court had entered a permanent order, the Mother of the Child brought an OSC seeking to move with Child to Minnesota so that they would have her family’s “financial and emotional support.”

When making its permanent order, the trial court adopted the recommendations of the evaluating psychologist whom both parties agreed would evaluate them.  However, in making its permanent order (67 percent timeshare for mother, 33 percent for father), apparently the trial court assumed Mother would not otherwise move to Minnesota even if relocation was denied by the court.  Mother appealed.

In reversing the trial court’s order, the court of appeal held that the trial court had abused its discretion by misapplying the pertinent legal standards in the context of a relocation request.  When a parent who shares joint physical custody of a child requests authorization to relocate with a Child in the context of an initial custody determination, it must decide de novo what physical custody arrangement would be in the Child’s best interests.

The appellate court further ruled that the trial court must also proceed on the assumption that the parent will actually move, regardless of how the court rules on the parent’s request, and then fashion a custody order that is in the Child’s best interest.  Thus, the appellate court remanded the case for reconsideration in light of Mother’s proposed move.


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Another important custody case to come down the past couple years deals with a mother’s difficulties in attempting to relocate to another state with her child.  In Jacob A. v C.H. (2011) 196 CA4th, a California Appellate Court ruled that the trial court that had denied a mother’s request to relocate with her child to Washington state had based its order on incorrect legal assumptions, and had failed to address the legal issue presented by the mother, which was:  What custody arrangement would be in the child’s best interests when mother actually relocated?

The facts of the case are that in 2007, the unmarried parents of a Child ended their relationship, and then Mother moved with the Child to Washington State.  In early 2008, after Mother had returned to California, Father petitioned for custody of the Child.  During that proceeding, Mother filed a motion with the court for a move to Washington.  However, a mediator who had met with both parents recommended against the move.  The mediator also recommended that Mother have primary custody so long as she remained in California.

Based on said recommendation, the trial court denied Mother’s request to move to Washington State and ordered that both parents would have joint legal custody and physical custody.  Mother again brought a motion to move in August of 2009.  She also sought to modify the parenting schedule on the grounds that, despite her best efforts, Mother could not locate work in California and that she had extended family in the state of Washington.  Mother further claimed that the child’s best interests would be served in allowing the Child to move with her and then have visitation with Father.

In her pleadings, Mother cited the Child’s bonds with her and her extended family, and she also noted the allegedly poor parenting choices by Father.  Father opposed the motion, and they were again back to mediation.  The second time around, the mediator initially declined to issue a custody recommendation and instead recommended that counsel be appointed for the Child to investigate the issue of the Child’s best interest.  Ultimately, the trial court denied Mother’s request to move with the Child back to the state of Washington, and Mother appealed.  The court of appeal reversed the trial court’s order.

The panel concluded that the trial court had misapplied the relevant legal standard.  The appellate court said that the trial court “was required to decide de novo what physical custody arrangement would be in (the Child’s) best interests, assuming (Mother) would be living in Washington.”  The appellate court also cited the trial court for having “failed to analyze the issue based on the presumption that mother would be moving to Washington.”  It was “incumbent upon the trial court,” the panel further stated, “to determine whether it was in the child’s best interests to relocate with mother to Washington and visit father, or remain in California with father and visit mother, then devise an appropriate parenting schedule.”


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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.

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