U.S Court Can’t Decide Case When Father Stole Kids

A California Court of Appeal has ruled that a Trial Court made a mistake by including children in the D.V.P.A. restraining order that was granted to Mother and by making custody and visitation orders because Mexico Trial Court had exclusive continuing jurisdiction over the children under Uniform Child Custody Jurisdiction Enforcement Act. In the case of In re Marriage of Fernandez-Abin and Sanchez, Mother and Father were married in Mexico in 1995. Their two children were born in San Diego in 1998, and 2003, respectively.

In October 2007, Mother filed for legal separation in Tijuana Trial Court. Later that month, she and Father made an agreement regarding his visitation rights. After Mother filed for divorce in December of 2007, Tijuana Trial Court granted her legal and physical custody of the children and ordered Father to pay child support. Father was also ordered not to leave Mexico unless he had local attorney.

Late in April of 2008, Mothers case was transferred to another judge. In June of 2008, Father and 10 men armed with assault weapons took children from Mothers parents house in Tijuana and took off for parts unknown. Mother sought help from Tijuana District Attorney and filed a request for the childrens return. Tijuana Trial Court then ordered District Attorney to investigate and terminated visitation agreement. Tijuana Trial Court later ordered Father not to have visitation or remove children from Tijuana.

Mother initiated Hague Convention petition and moved legally to San Diego. When Tijuana Trial Court issued an order conditioning Fathers visitation on returning the children to Mother, Father refused to do so. After Tijuana Trial Court ordered Tijuana authorities to “use any force necessary” to effect the childrens return, law enforcement twice tried and failed to recover the children.

In September of 2008, following a hearing on Mothers Hague petition, San Diego District Attorney child abduction unit was able to remove the children from Fathers Chula Vista home and reunite them with Mother. According to Mother, Father then threatened to have her killed if she returned to Tijuana. She and the children ended up living in domestic violence shelter in San Diego.

On November 7, 2008, Mother filed a request for a restraining order to protect her and the children from Fathers threats, abuse, and domestic violence. San Diego Trial Court granted Temporary Restraining Order that included personal conduct and stay-away orders covering Mother and children, granted temporary legal and physical custody to Mother, and scheduled a hearing for December 1, 2008. Meanwhile, Tijuana Trial Court held hearings on visitation request filed by Father, made orders regarding return of Mothers personal property, and declined to order visitation unless Father, Mother, and the children had a psychological evaluation.

On November 25, 2008, Tijuana Trial Court issued a visitation order, permitting Father weekly supervised visits for 10 hours, plus daily telephone contact of 60 minutes. On November 16, 2008, Father filed a motion to quash and for dismissal of the restraining order action on grounds of forum non conveniens and lack of Uniform Child Custody Jurisdiction Enforcement Act jurisdiction.

At the December 1, 2008 hearing, San Diego Trial Court found that it had temporary emergency U.C.C.J.E.A. jurisdiction over the children under California Family Code Section 3424(a), cautioned Father to comply with the existing custody and visitation orders, and to seek resolution of visitation issues in Tijuana Trial Court. At the continued hearing on December 10, 2008, Trial Court found that Tijuana Trial Court orders were appropriate and refused to assume U.C.C.J.E.A. jurisdiction over the children. San Diego Trial Court issued restraining orders to protect Mother, and granted the motion to quash and to dismiss as to the children. Mothers case was then transferred to Judge Lisa Schall.

On February 13, 2009, Tijuana Trial Court sent a letter to San Diego Trial Court in the restraining order, stating her belief that the children would not be safe visiting Father in Tijuana because of extensive publicity regarding Mother and Fathers divorce, but emphasizing Fathers right to see the children, explaining visitation orders, and asking to be informed about San Diego Trial Courts actions.

At the evidentiary hearing on the restraining order in April of 2009, Father argued that San Diego Trial Court lacked U.C.C.J.E.A. jurisdiction to include the children in scope of restraining order. San Diego Trial Court, however, found that the best-interests doctrine permitted including the children in any order issued. When the hearing concluded, San Diego Trial Court found that both Mother and the children needed protection, and San Diego Trial Court had jurisdiction to make orders to protect the children, who were living here.

After the April 16th hearing on custody and visitation, San Diego Trial Court found that it had jurisdiction as to the restraining order action (which could include the children), and could balance Tijuana Trial Courts visitation and custody orders against current facts and evidence; San Diego Trial Court then appointed reunification counselor. When Father subsequently moved to vacate the April orders, San Diego Trial Court found that California was the childrens habitual residence since June of 2008, and continued the orders limiting Fathers visitation to webcam.

In September 2008, San Diego Trial Court granted Fathers request to register Tijuana Trial Courts letter, but found that Tijuana Trial Court did not have all of the current facts, San Diego Trial Court would make ultimate decision on visitation, and San Diego Trial Court had previously granted legal and physical custody of the children to Mother.

Claiming that San Diego Trial Court lacked necessary U.C.C.J.E.A. jurisdiction to make custody and visitation orders or include the children in the restraining order, Father appealed, and the California Appellate Court reverses the Trial Courts decisions. The Appellate Court has found that (1) U.C.C.J.E.A. applies to restraining order proceedings; (2) absent finding of temporary emergency jurisdiction, Trial Court lacked U.C.C.J.E.A. jurisdiction because Tijuana Trial Court had exclusive continuing U.C.C.J.E.A. jurisdiction; and (3) San Diego Trial Court failed to consider exercising emergency jurisdiction in making its restraining, custody, and visitation orders. Thus, the Appellate Court reversed April 9, 2009, restraining order as it pertains to the custody and visitation and remanded the case back to San Diego Trial Court with directions to determine whether it had emergency jurisdiction when it included the children in that order, to make appropriate findings under U.C.C.J.E.A., and to adhere to U.C.C.J.E.A. statutory requirements.

TRIAL JUDGE WAS WRONG IN NOT GRANTING A CONTINUANCE OF HEARING IN A DOMESTIC VIOLENCE CASE

A California Court of Appeals has ruled that a Trial Court was wrong, in a Domestic Violence Protection Act (“DVPA”) case, by refusing to grant a continuance to a Plaintiff who needed one to permit him to serve the opposing party and to give him time to recover from an unforeseen back surgery. In the case of J.M. v. W.T., Plaintiff, on January 8, 2019, filed a request for a DVPA protective order against Defendant. In a supporting declaration, Plaintiff asserted that between December 23, 2017, and March 17, 2018, Defendant committed several acts of domestic violence against Plaintiff (throwing a book at him, calling him offensive names over the phone, punching him with closed fist, biting him during sex, threatening to hurt his dog after the dog preferred Plaintiff to Defendant, and demanding entry to Plaintiff’s condo and then becoming physically out of control). Trial Court issued a Temporary Restraining Order pending the hearing and scheduled a hearing for January 29, 2019.

On January 24, 2019, Plaintiff submitted a written request for a continuance on California Judicial Council Form DV-115, explaining that he had been unable to serve Defendant with the necessary papers and that he was scheduled for spinal surgery on January 28, 2019, after which he would be unable to care for himself, stand or sit for a long period, or think clearly because of the medications. Neither party appeared at the January 29, 2019 hearing, and Trial Court denied the request for a continuance and dismissed the case, commenting that the incidents complained of happened almost a year ago.

Plaintiff appealed Trial Court’s decisions, and now a California Court of Appeals has reversed Trial Court’s decisions and remanded the case back to Trial Court with instructions. The Appellate Court has ruled that (1) under California Family Code Section 245(b), Trial Court must grant a continuance if a party shows good cause for one in writing or orally on the record; (2) the failure to serve the opposing party is grounds for a continuance; (3) here Plaintiff demonstrated good cause for a continuance on these facts; and (4) Trial Court abused its discretion by failing to grant a continuance. Therefore, the Appellate Court reversed Trial Court’s order denying a request for DVPA protective order and remanded the case back to Trial Court with directions to grant a continuance within 30 days of the case coming back to Trial Court.

Trial Judge Was Wrong in Not Granting a Continuance of Hearing in a Domestic Violence Case

A California Court of Appeals has ruled that a Trial Court was wrong, in a Domestic Violence Protection Act (DVPA) case, by refusing to grant a continuance to a Plaintiff who needed one to permit him to serve the opposing party and to give him time to recover from an unforeseen back surgery. In the case of J.M. v. W.T., Plaintiff, on January 8, 2019, filed a request for a DVPA protective order against Defendant. In a supporting declaration, Plaintiff asserted that between December 23, 2017, and March 17, 2018, Defendant committed several acts of domestic violence against Plaintiff (throwing a book at him, calling him offensive names over the phone, punching him with closed fist, biting him during sex, threatening to hurt his dog after the dog preferred Plaintiff to Defendant, and demanding entry to Plaintiffs condo and then becoming physically out of control). Trial Court issued a Temporary Restraining Order pending the hearing and scheduled a hearing for January 29, 2019.

On January 24, 2019, Plaintiff submitted a written request for a continuance on California Judicial Council Form DV-115, explaining that he had been unable to serve Defendant with the necessary papers and that he was scheduled for spinal surgery on January 28, 2019, after which he would be unable to care for himself, stand or sit for a long period, or think clearly because of the medications. Neither party appeared at the January 29, 2019 hearing, and Trial Court denied the request for a continuance and dismissed the case, commenting that the incidents complained of happened almost a year ago.

Plaintiff appealed Trial Courts decisions, and now a California Court of Appeals has reversed Trial Courts decisions and remanded the case back to Trial Court with instructions. The Appellate Court has ruled that (1) under California Family Code Section 245(b), Trial Court must grant a continuance if a party shows good cause for one in writing or orally on the record; (2) the failure to serve the opposing party is grounds for a continuance; (3) here Plaintiff demonstrated good cause for a continuance on these facts; and (4) Trial Court abused its discretion by failing to grant a continuance. Therefore, the Appellate Court reversed Trial Courts order denying a request for DVPA protective order and remanded the case back to Trial Court with directions to grant a continuance within 30 days of the case coming back to Trial Court.

Wife Convicted of Domestic Violence Not Entitled to Spousal Support

A California Court of Appeals has ruled that a Trial Court was not wrong when it denied Wife a spousal support award under California Family Code Section 4325s rebuttable presumption against spousal support award to a spouse who is convicted of domestic violence. In the case of In re Marriage of Brewster and Clevenger, Husband, an orthopedic surgeon, and Wife, a gynecologist and obstetrician, separated in August of 2011, after 21 years of marriage. Wife filed for divorce.

In March of 2015, Husband filed a request for a temporary spousal support. In his supporting declaration, Husband stated that he had been depositing $10,000 per month into a joint account to cover Wifes expenses and had been paying the mortgage and property taxes on the parties family home, where Wife was living rent free. Husband also asserted that he should not be ordered to pay any spousal support to Wife because she had been charged with several criminal counts for harassing him. Wife filed no response to Husbands request.

After Trial Court set a trial date for October of 2016, Husband filed a trial brief in which he asked Trial Court to take judicial notice of the file in Wifes criminal stalking case. Husband acknowledged that Trial Court had reserved jurisdiction on his temporary spousal support request, but reiterated his assertion that he should not have to pay spousal support to Wife under Family Code Section 4325 [rebuttable presumption against spousal support award to spouse convicted of domestic violence] and Section 4320 (i) and (n) [spousal support factors regarding domestic violence and any other equitable factors] since Wife had been convicted of domestic violence in January of 2016. He also claimed that Wife was underemployed and could be self-supporting.

Trial Court held four days of trial between October of 2016, and January 2017. At the outset, Trial Court took judicial notice of the minute orders and sentencing hearing in Wifes criminal case. The parties stipulated on the record that the duck club membership would be assigned to Husband at a value of $65,000. Wife testified that she had been convicted of some criminal counts but did not specify them. However, in her written closing argument, she confessed to having put a non-poisonous python and several rats into the home where Husband was staying.

In rebuttal of the Family Code Section 4325 presumption, Wife testified to three incidents in which Husband had committed domestic violence against her. In the first, Wife claimed that Husband intentionally dislocated her finger when she refused to let go of his shirt during a confrontation; in the second, she alleged that Husband screamed at her, picked her up out of his chair, and threw her across the hallway after she confronted him at his office during business hours about an affair; and in the third, she stated that she had gone to Husbands office on a Saturday, gained entry with a key she had previously purloined, and surprised him at his desk. In the ensuing conflict, Wife stated that Husband had injured her hip by throwing her down on the thinly-carpeted concrete floor, but had dissuaded her from calling police and begged for forgiveness. In his testimony, Husband claimed that Wife was the aggressor in each incident, that he had merely tried to subdue her, and that he had not noticed the bruises that she had claimed to have received.

Wife also testified to having several medical conditions relating to her shoulders, hands, and feet, as well as to suffering cardiac arrythmias requiring hospitalization after the last incident with Husband. Wife said that most of her conditions had since resolved, but she was unable to perform many of the procedures required in her practice and had begun to offer medical weight reduction treatment to supplement her practice.

After the parties submitted written closing arguments, Trial Court issued a tentative decision and subsequent divorce judgment in which it awarded the duck club membership to Husband at a value of $60,000, determined that the $10,000 payments Husband made were in lieu of spousal support and were taxable to Wife and deductible to Husband, ruled that Family Code Section 4325 applied (Wife had not rebutted the presumption), and set spousal support at zero.

Wife appealed, but after modifying the value of the duck club membership, the California Court of Appeals has affirmed Trial Courts decisions. The appellate court has ruled that (1) it must deny Wifes request for judicial notice of documents not presented at trial and not considered by Trial Court in making its judgment; (2) Trial Court was not wrong in applying Family Code Section 4325 presumption or in concluding that Wife failed to rebut the presumption on these facts (Wife filed to introduce documented evidence that she was the victim of domestic violence and statute does not require conviction be for a violent act); (3) Trial Court was also not wrong in declining to order spousal support; (4) Trial Court was also not wrong in finding that Husbands payments into joint account were in lieu of spousal support (Trial Court did not lack jurisdiction to make temporary support order or retroactive order; Wife was estopped from arguing that payments were not in lieu of spousal support when she took the opposite position at trial); (5) Wife waived her argument regarding taxability of payments by failing to raise that issue at trial; and (6) Trial Court was wrong by valuing duck club membership at $60,000 after parties stipulated that its value was $65,000. Therefore, the Court of Appeals modifies the judgment to reflect correct value of the membership and affirms the remainder of the judgment.

A Child Can Have Three Parents

A California Court of Appeals has ruled that a Trial Court was wrong in finding that a child would suffer no detriment if another man was not recognized as the childs third parent under California Family Code Section 7612(c).

In the case of Martinez vs. Vaziri (April 8, 2016), Petitioner and Mother were in a long-term relationship. During their relationship, Mother became pregnant. Believing that Petitioners half-brother (Father) was the expected childs biological father, Mother filed a paternity action, in which the paternity testing established that Father was the biological father.

Father, however, abandoned Mother during her pregnancy. Meanwhile, despite knowing that his half-brother was the biological dad, Petitioner went with Mother to prenatal appointments, parenting and birthing classes, and planned to raise the expected child as his own child. When the child was born in November of 2012, Petitioner cut the umbilical cord. He lived with Mother and Child during Childs first six months of life, and helped care for Child in every way.

In May of 2013, Petitioner moved to his own apartment, but would still see Child two days and three nights of every week. He held Child out as his own child to everyone but a few friends and family members who knew that Father was Childs biological dad. Meanwhile, Father spent a total of seven to eight hours with Child and the bulk of his time in jail.

In November of 2013, Petitioner, apparently high on drugs, spanked one year-old Child, causing severe bruising. Mother called her counselor, who notified CPS. CPS removed Child from Mothers care for several days, investigated the incident, and determined that Petitioner had been under the influence of illegal substances when he spanked Child. CPS agreed to return Child to Mothers care under a case plan that prohibited Petitioner from having any contact with Child for six months. At the end of that time, Petitioner was allowed five to twenty hours of visitation with Child each week, and he and Mother worked with parenting coach and therapist for help in raising Child.

Petitioner subsequently filed a petition to establish his paternity of Child under California Family Code Section 7611(d) [presumed father accepts child into his home and openly holds child out as his] and California Family Code Section 7612(c) [Trial Court may determine that child has more than two parents if recognizing only two parents would be detrimental to child]. At the hearing on August 20, 2014, Mother testified that Petitioner acted as Childs father, Child refers to Petitioner as her father, and Petitioner provided support for Child. Mother expressed concern that permitting Petitioner to be designated as Childs third parent might detrimentally affect her (Mothers) custody rights, but stated that the spanking incident was caused by Petitioners substance abuse relapse, which had not recurred. Mother, however, stated that failing to designate Petitioner as Childs third parent would not be detrimental because she would still let Petitioner have a relationship with Child. Petitioner testified about his parental role, admitted that he had relapsed when the spanking incident occurred, and emphasized his commitment to Childs well-being. Petitioner asserted that it would be detrimental to Child if her relationship with him was not protected. Father did not testify.

When hearing concluded, Trial Court found that Petitioner qualified as a presumed father under California Family Code Section 7611(d), but his presumption of fatherhood had been rebutted by Fathers paternity judgment. Trial Court also found that it would not be detrimental to Child if Trial Court failed to designate Petitioner as Childs third parent because Child had already been removed from a stable placement with Petitioner (either when CPS removed her or when Petitioner moved to his own place). Accordingly, Trial Court denied Petitioners petition.

Claiming that Trial Court erred in interpreting Family Code 7612(c), Petitioner appealed. Now, California Court of Appeals has reversed Trial Courts decision. The Appellate Court has ruled that (1) Family Code Section 7612(c) requires Trial Court to consider all relevant factors, including the harm of removing the child from a stable placement with a parent who has fulfilled the childs physical needs and psychological needs for care and affection and has assumed parental role for a substantial period of time; (2) Trial Court erred by interpreting stable placement to mean the childs living situation; (3) stable placement should be interpreted in relation to the relationship established between the child and the proposed third parent (person who has fulfilled the childs needs for care and affections for a considerable period of time); and (4) Trial Courts finding that Fathers paternity judgment trumped Petitioners presumed parent claim was erroneously based on its improper interpretation of Family Code Section 7612(c) and failure to consider all relevant factors. Court of Appeals has reversed Trial Courts rebuttal finding and its order denying Petitioners request to be deemed Childs third parent. It has also sent the case back to Trial Court to reconsider the issue of detriment and of rebuttal.

Wife Not Liable for Husband’s Post-separation Debt

A California Appellate Court has ruled that Trial Court erred by entering a judgment against Wife for hospital and medical expenses incurred by Husband during separation that were not assigned to her by the divorce judgment. In the case of C.M.R.E. Financial Services, Inc. v. Parton, Wife called police on February 16, 2006, and told them that Husband had inflicted domestic violence on her. Not long after that, Wife got a restraining order against Husband, and Husband and Wife separated. After separation, Husband was admitted to Tri-City Medical Center (T.C.M.C.), apparently suffering from emotional illness. Husband was hospitalized from February 23, 2006, to February 27, 2006.

On May 17, 2006, Wife filed for divorce. Her divorce petition asserted that T.C.M.C. debt was Husbands obligation alone. The divorce judgment entered by Trial Court on September 26, 2006, did not assign T.C.M.C. debt to Wife.

On January 24, 2008, C.M.R.E. Financial Services, Inc. (C.M.R.E.), as assignee of T.C.M.C., sued Husband and Wife, seeking to collect unpaid T.C.M.C. debt of $26,083, plus interest and attorneys fees. In response, Wife denied material allegations in the complaint and cross-complained against C.M.R.E. for violating the Fair Debt Collection Practices Act [F.D.C.P.A.; 15 U.S.C. 1692 et seq.] by sending collection notices to her. When C.M.R.E. was unable to serve Husband with the complaint, Trial Court dismissed Husband from suit without prejudice. C.M.R.E. demurred to Wifes cross-complaint, asserting that Wife was liable for Husbands necessaries of life under California Family Code Section 914 and was not relieved of liability by the divorce judgment under California Family Code Section 916(a)(2)[non-debtor spouse not liable for debt of other spouse not assigned to him or her in the divorce judgment.]

Trial Court sustained demurrer without leave to amend and subsequently awarded judgment for C.M.R.E. of $26,083, plus interest, attorneys fees, and costs. Claiming that the divorce judgment relieved her of liability for T.C.M.C. debt, Wife appealed, and California Appellate Court has now reversed and remanded the case back to Trial Court for further action. The Appellate Court has ruled that (1) pursuant to California Family Code Section 4302, spouse is not liable for post-separation debt incurred for other spouses necessaries of life unless parties have so stipulated; (2) California Family Code Section 916(a)(2) relieves non-debtor spouse of liability for other spouses post-separation debt not assigned to him or her in the divorce judgment; (3) California Family Code Section 914 does not impose joint and several liability on spouses that is separate from and not affected by California Family Code Section 916; and (4) Trial Court erred by entering judgment against Wife for T.C.M.C. debt. As a result, the Appellate Court has reversed the judgment against Wife and has vacated the order sustaining the demurrer (Wife stated viable claim for violation of F.D.C.P.A.) Then, the Appellate Court remanded the case to Trial Court to dismiss C.M.R.E.s complaint and to consider whether C.M.R.E. had valid defense to Wifes F.D.C.P.A. cross-complaint.

Mom Gets Custody Despite Her Unclean Hands

A Federal Circuit Court of Appeals has ruled that unclean-hands doctrine does not apply in Hague Convention cases. In the case of Karpenko v. Leendertz, Mother and Fathers child was born in Pennsylvania in 2001. In September of 2002, after Mother and Father separated, Pennsylvania Trial Court issued an order (per their custody stipulation) that gave Mother primary physical custody of Child, provided that Mother and Child would live in Mothers home country, Ukraine, and gave Father regular visitation rights to be exercised in Ukraine, the Netherlands (where Father has family), or the United States.

Mother and Child lived in Ukraine until Child was two, when they moved to the Netherlands at Fathers request. When Child was four, she began attending Dutch public school, spoke Dutch as her primary language, and often socialized with Mothers Dutch relatives. Father, whose job as an airline pilot enabled him to travel to Netherlands, later found that Mother was refusing to allow him full visitation with Child.

In 2007, Mother and Child moved to another city without giving Father their new address or phone number. In 2008, Father filed a petition for sole custody in Pennsylvania Trial Court, while Mother filed one in Dutch District Court for Arnhem. That Court stayed Mothers petition, pending action by Pennsylvania Trial Court.

On May 20, 2009, Pennsylvania Trial Court granted Father sole custody of Child, sole authority to apply for passport for Child (without Mothers knowledge or consent), and authority to take custody of Child in U.S. or another country. That Court also granted visitation rights to Mother and adjudged her in contempt for willfully violating its prior orders.

Armed with that order, Father went to Netherlands, but instead of domesticating it in Dutch Trial Court (as required by Dutch law), he found Child outside her school, put her in a car, and drove her to Germany. From there, Father and Child flew to Dubai and then to U.S.

On May 29, 2009, Dutch Trial Court issued order, finding that Father unlawfully removed Child from the Netherlands without Mothers permission and directing Father to return Child to Mothers custody immediately. Father ignored that order and continued to live with his new wife and Child in Pennsylvania.

On July 20, 2009, Mother filed a petition under Hague Convention [codified as International Child Abduction Remedies Act (ICARA) at 42 U.S.C. 11601 et seq.], seeking Childs return to the Netherlands from Fathers wrongful removal. U.S. District Court for Eastern District of Pennsylvania granted Mothers petition, but stayed enforcement of its orders pending Fathers appeal to the Third Circuit Court of Appeals.

Acting on that appeal, the Third Circuit Court of Appeals affirmed the District Courts rulings. The Court of Appeals has ruled that Father wrongfully removed Child from the Netherlands when he employed “a snatch and run” of Child instead of registering his Pennsylvania custody order and seeking enforcement. Majority further holds that the unclean-hands doctrine does not apply in Hague Convention cases; thus, Mothers behavior is not relevant and does not excuse Fathers wrongful taking. In dissent, Judge Aldisert would have found guidance in cases approving application of other equitable doctrines, such as waiver and fugitive disentitlement doctrine, in Hague Convention cases and sees no reason why equitable doctrine of unclean hands should not also apply. Judge Aldisert would have applied that doctrine and reversed District Courts grant of Mothers petition, describing it as “her latest effort to make American courts the instrumentalities of her inequitable conduct.”