Paul

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.

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.”

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.

Governor, Jerry Brown, has signed California Senate Bill 1255 which defines date of separation in divorce cases. This new Legislation will be effective January 1, 2017, and will apply retroactively to all divorce cases that are still pending on that date.

Senate Bill 1255 adds new California Family Code Section 70. Section 70(a) provides that date of separation means the date that a complete and final break in the marital relationship has occurred, as evidenced by both of the following: (1) the spouse has expressed his or her intent to end the marriage to the other spouse; and (2) the conduct of the spouse is consistent with his or her intent to end the marriage.

In Section 70(b), the statute provides that Trial Court shall take into consideration all relevant evidence when determining date of separation.

In Section 70(c), the statute states that the intent of the Legislature in enacting this section is to abrogate the decisions In re Marriage of Davis (2015) 61 Cal.4th 846 [which held that there is no date of separation where parties still live together] and In re Marriage of Norviel (2002) 102 Cal.App.4th 1152 [which held that date of separation requires an intent to terminate the marriage and actual physical separation].

This new statute also amends California Family Code Section 771(a) [separate property nature of earnings after date of separation] to remove the reference to living separate and apart and replace it with the phrase after the date of separation. It makes a similar change to California Family Code Section 910(b)[community property liability for debt] to provide that during marriage does not include the period after the date of separation, as defined in Section 70, and before a divorce or legal separation judgment. It also makes conforming amendments to California Family Code Section 914 (a)(1)and (2) and (d)[debt liability] and California Family Code Section 4338(a) [source for enforcement of spousal support order].