RECENT CALIFORNIA LAW CHANGE AFFECTS ASSETS OF THOSE ALLEGED TO ILLEGALLY HOLD THEIR CHILDREN

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Ah yes, California lawmaking at its finest.  For those who missed it, California’s legislature, in its great wisdom, has once again effectuated new legislative amendments that will have an affect on how child custody is handled in California.  In amending sections 2040 and 3134.5 of the California Family Code, the lawmakers amended California family law to:

  1. add a passport restriction to the automatic temporary restraining orders (ATROs) in the family law summons, and
  1. authorize a court to include a provision in a protective custody warrant that freezes the California assets of a party alleged to be in unlawful possession of a  child.

This January 1st 2013 piece of legislation is entitled SB 1206. The law used to provide for ATROs on the reverse side of the family law summons, which include in part a restraint on removing the minor child or children of the parties, if any, from the state, without the prior written consent of the other party or an order of the court.  (Family Code §2040(a)(1)). This restraint, under SB 1206, will now include the provision that a party must not apply for a new or replacement passport for the minor child or children without written consent of the other party or a court order. (Family Code §2040(a)(1)). The new senate bill also amends the protective custody warrant provisions of Family Code §3134.5 by authorizing a court to include in such a warrant a provision to freeze the California assets of the party alleged to be in unlawful possession of the child.  Under this provision, “assets” include funds held in a depository institution that is defined by California law.  (Family Code §3134.5(c)). By means of a noticed motion, the freeze may be terminated, modified, or vacated by the court on a finding that the release of the assets will not jeopardize the safety or best interest of the child.  (Family Code §3145.5c).  The warrant itself may be dismissed by the court on the basis of a declaration by the district attorney that the child has been recovered or the warrant is no longer needed in that case, if an asset freeze was earlier imposed, the depository institution must be immediately served with notice of dismissal of the warrant.  (Family Code §3134.5(b), (d)).

COURT MUST CONSIDER ACTUAL PARENT MOVE IN RELOCATION 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.

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.

GRANDPARENTS CAN HAVE VISITATION IF IN CHILD’S BEST INTEREST

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For those who have grandchildren, there’s an important case to be aware of that affects custody and visitation involving grandparents.  In the case of Hoag V. Diedjomahor (2011 Cal App Lexis 1307), the California appellate court ruled that a trial court property allowed visitation of two children by their maternal grandmother under Family Code §3102 over their father’s objection, when it was determined that visitation was in the children’s best interest.

The facts involved in Diedjomahor were these:  After a couple’s 2005 marriage, they initially lived with the Wife’s mother (Grandmother in this case).  The couple separated in 2007, with both Wife and child staying with Grandmother.  In 2008, during a brief reconciliation, all three (3) moved in with Father.  A second child was born.  Wife petitioned for divorce in February of 2009, then died one month later.

Grandmother petitioned for guardianship of the children in May of 2009, alleging that Father was unfit as a parent, but the local child protective services agency found no cause for concern.  In the guardianship proceeding, the court ordered the parties to agree to a visitation schedule, but initially the father was uncooperative, and the court imposed a visitation schedule in June 2009.

In October of 2009, Grandmother filed a separate petition for visitation under Family Code §3102, and two months later the guardianship matter was dismissed.  In January 2010, the visitation case went to mediation, and a trial court adopted the mediator’s recommended visitation schedule as its temporary order.  Trial was in March of 2010, wherein father conceded that the children loved their Grandmother, and he said that he would allow visitation voluntarily, while also expressing some opposition to visitation arising from her efforts to obtain custody.

The trial court granted the visitation petition and ordered a continuation of the temporary visitation schedule, with minor adjustments.  The court acknowledged that §3102 had been found “unconstitutional when applied to a surviving parent who is neither unfit nor opposed to occasional visitation,” and that there was “overwhelming evidence” that the father was a fit parent.  However, it found that the father’s offers of reasonable visitation to the Grandmother were “feigned at best without any substance,” and that visitation with Grandmother would be in the children’s best interest.  Father then appealed, with the court of appeal affirming the judgment, holding that the trial court properly found that visitation by Grandmother would be in the children’s best interest.

LAKERS’ GUARD STEVE NASH PLAYS DEFENSE AGAINST CHILD SUPPORT

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When future NBA hall of famer Steve Nash first signed on with the Los Angeles Lakers he talked about hittin’ a few jumpers, maybe winning a championship, and how his family would benefit by him being so close to his children.  Now, however, the superstar guard finds himself in a full court press to keep those same children in Arizona and out of California.

That’s because Nash’s ex-wife, Alejandra Amarilla, has spiced things up by attempting to move the couple’s children to California in order to get a child support order from her ex.  This in turn appears to have prompted her aging point guard ex to dig in for what promises to be an expensive legal battle for the two.

Mom says she just wants to move the kids to California so they can spend more time with their father.  And she’s hired one of L.A.s biggest divorce lawyers to prove it – and maybe to do a little battle in both the California and Arizona family law courts.  Dad, on the other hand, believes it’s all just a scheme to get child support and not necessarily what’s in the best interests for the kids.

The couple announced their split in 2010, five years after they were married.  Previously, an Arizona family law judge ruled that Amarilla is not entitled to child support in Arizona, however, she might be able to seek it in California, should she move there.

So maybe there are better schools in California, as mom has stated.  And maybe the former Mrs. Steve Nash and the former couple’s children will enjoy living in California for six months and…if things haven’t settled by then…mom can file in California’s family law court.  And the child support case will be back on, only this time it’ll be California style.  And little Stevie will probably be on the financial hook for a heckuva lot more than if he’d just settled things with the former missus back in Arizona.

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