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A California Court of Appeals has ruled that Trial Court did not err by basing its denial of Mothers Hague Convention petition on an eight year-old childs objections to being returned to habitual residence in Chile. In the case of Escobar v. Flores, unmarried Mother and Father were living in Mammoth Lakes (ML) when their Child was born on August 5, 2000, in Reno, Nevada. In March of 2004, Mother and Father agreed that Mother could take Child to visit family in Chile. According to Father, that trip was supposed to be an extended visit with Child returning to California in seven months. Mother maintained that Father knew she and Child were relocating to Chile. Six months later, Mother told Father that she would not be coming back to California. In 2005, Chilean Trial Court issued an order granting Mother custody of Child, ostensibly without notice to Father. Sometime after that, Father married Wife and moved to North Carolina.

In August of 2008, Mother, who was unable to obtain a visa for herself, sent Child to visit her sister in Mammoth Lakes. When Father found out, he went to Mammoth Lakes to visit Child. On August 12, 2008, Father filed a petition to establish his paternity of Child in Mono County Trial Court, which awarded him temporary custody of Child and permitted him to take Child to North Carolina pending the next hearing.

On August 22, 2008, Mother filed a Hague Convention [as implemented by I.C.A.R.A.; 42 U.S.C. 11601 et seq.] petition in Mono County Trial Court seeking an order for the Childs return to Chile. In opposition, Father contended that Mono County Trial Court should deny Mothers petition on basis of provision in Article 13 permitting Trial Court to refuse to order the return if a child of appropriate age and maturity objects to the return. On October 17, 2008, Mono County Trial Court held a hearing on Fathers paternity action and Mothers petition, ordered cases separated, stayed Fathers action, and continued the hearing on Mothers petition to December.

At the hearing on December 24, 2008, the parties conceded and Mono County Trial Court found that Chile was Childs habitual residence. After ascertaining that Mother and Father agreed to its jurisdiction and venue, Mono County Trial Court decided not to interview Child by telephone regarding his objections and continued the hearing to January to give Father and Child time to get to California from North Carolina.

At the January 9, 2009 hearing, Mother unsuccessfully argued that as matter of law, a nine year-old was not sufficiently mature to object to the return. After hearing Mothers evidence regarding Fathers coaching of Child to object, Mono County Trial Court found it insufficient. In chambers conference, Child told judge that Father and Wife had told him to say what was in his heart, and that staying in North Carolina was in his heart; Child stated that he liked his school, friends, and activities in North Carolina more than those in Chile, and that he did not miss his mother. Child said that he wanted to learn English and he would be happy if he stayed in North Carolina. Mono County Trial Court then took more evidence from Mother, heard argument from counsel, and ruled that Child was of sufficient age and maturity to have his wishes taken into account. Noting Childs objection to return, Mono County Trial Court refused to make a return order and denied Mothers petition.

Mother appealed, but now a California Court of Appeals has affirmed the Trial Courts ruling. The Appellate Court has ruled that (1) the determination regarding childs maturity is reviewed under clearly-erroneous standard; (2) a de novo standard is not appropriate because Trial Court is in better position to determine the childs maturity; (3) Father did not lack standing to oppose Mothers petition simply because his paternity had not been adjudicated; (4) Trial Court properly stayed ruling on Fathers petition until Mothers petition was heard and ruled on; and (5) evidence of Childs maturity was sufficient to permit Trial Court to consider Childs wishes in ruling on Mothers petition.

In the case of United States v. Davis, Father and Mother lived together, during their relationship, in mobile home park with their two daughters (one born in 1990, and another one born in 1992). Mother and Father separated in 1996, and again in 1998. At that time, Mother and Daughters began living with Mothers parents on their farm in Watkins, Iowa. On January 28, 2000, Iowa Trial Court entered an order establishing Fathers paternity of Daughters and requiring him to pay child support of $723 per month, based on Fathers reported earnings from April 19th to May 1st of $1,279.

On July 26, 2001, Iowa Trial Court found that Father failed to pay any child support and thus, it held him in contempt and ordered him to pay $2,000 by July 30, 2001, or spend 30 days in jail. Father paid the $2,000; Child Support Recovery Unit in Cedar Rapids (C.S.R.U.) also collected $2,963 during 2001, through an income withholding order. However, C.S.R.U. told Trial Court that it had trouble collecting because Father stayed one step ahead of withholding order through frequent job changes.

On January 10, 2002, Iowa Trial Court found Father in contempt for willfully failing to pay some or all of his child support obligation from November 2001, through January 2002. In January 2002, and February 2002, C.S.R.U. collected total of $1,638 through federal and state tax offsets. Father subsequently filed request for modification, and Iowa Trial Court reduced his child support obligation to $570 per month, based on an imputed annual income of $30,000 per year to Father. Nonetheless, Father failed to pay any child support from 2003 through 2004; C.S.R.U. collected only $1,885 in 2003 and $845 in 2004.

In August of 2004, C.S.R.U. found out that Father was working in Colorado and referred his case to Colorado child support services. Father continued his nonpayment during 2005, 2006, 2007, and 2008; he owed $52,354 by July of 2008. Meanwhile, on April 23, 2008, federal grand jury handed down two-count indictment against Father for violating 18 U.S.C. 228(a)(3)[Child Support Recovery Act (C.S.R.A.), as amended by Deadbeat Parents Punishment Act); willful failure to pay past due child support obligation] and 228(a)(1)[lesser included offense]. At trial in U.S. District Court for Northern District of Iowa, Father moved for acquittal after close of governments evidence and renewed motion after all evidence was presented, but District Court denied both motions. After jury convicted Father on count 1, District Court dismissed count 2, sentenced Father to 2 years in prison with 1 year supervised parole, and ordered Father to make restitution of $53,637.

Claiming that District Court erred by denying his motions for acquittal, Father appealed, but the Federal Circuit Court of Appeals has now upheld the District Courts decision. In doing so, the Court of Appeals has ruled that (1) this is case of first impression in that Federal District; (2) relying on the cases of Mattice (1999) 186 F.3d 219, and Mathes (1998) 151 F.3d 253, the government need not show that defendant was able to pay the total back child support in Child Support Recovery Act prosecution, but only that defendant was able to pay part and willfully failed to do so; (3) failure to pay is willful if defendant could have paid more than he or she actually paid; and (4) evidence was sufficient to show that Father could have paid more than he paid. The Court of Appeals has ruled that Father violated 18 U.S.C. 228(a)(3) by willfully failing to pay his child support obligation, and affirms the District Court judgment.

A U.S. District Court has ruled that Proposition 8 is unconstitutional under both Due Process and Equal Protection Clauses and enjoins its enforcement. In an eagerly awaited opinion in Perry v. Schwarzenegger, U.S. District Court Judge Vaughn Walker has ruled that Proposition 8, which limits valid marriages to those between men and women, is unconstitutional. In Perry, a lesbian couple in a committed relationship, and a gay couple in a similar relationship had been denied a marriage license by their respective County Clerks because of Proposition 8. The couples then sued Californias governor, attorney general, and other public officials in the U.S. District Court for Northern District of California, challenging the constitutionality of Proposition 8. The attorney general conceded its unconstitutionality and the other government defendants refused to take a position on the merits of the case or to defend Proposition 8. The official proponents of the proposition were then permitted to intervene to defend its constitutionality in further proceedings and at trial.

The following are highlights of the findings of fact and conclusions of law contained in Judge Walkers opinion: Some of the Findings of Fact:

1. California law governs its citizens right to marry or divorce and no longer contains racial restrictions.

2. Until the enactment of no-fault divorce, the concept of coverture required the husband to be the legal head of the household, precluded wives from suing in their own names, and assigned division of labor between spouses (husband as provider, wife as homemaker).

3. Changes in statutes and by case law have eliminated gender-based marital obligations and given husbands and wives equal rights of control over marital property and duties of support.

4. Eliminating gender and race restrictions in marriage has not deprived the institution of marriage of its vitality.

5. Marriage is state recognition and approval of a couples choice to live together, remain committed to each other, and form a household based on their feelings toward each other and desire to support each other.

6. Marriage benefits adults emotional well-being, and tangible and intangible benefits of marriage flow to the couples children.

7. Sexual orientation is an individual characteristic that is fundamental to a persons identity and defines gays and lesbians as a discrete group.

8. Individuals do not generally choose their sexual orientation and no credible evidence supports finding that they may change it through conscious decision, therapeutic intervention, or any other method.

9. California has no interest in asking gays and lesbians to change their sexual orientation or in reducing the number of gays and lesbians in this state.

10. Same-sex couples are identical to opposite-sex couples in their ability to form successful marital unions, deep emotional bonds, and strong commitments to their partners.

11. California law permits and encourages gays and lesbians to become parents through adoption, foster parenting, or assistive reproductive technology. (Approximately 18% of same-sex couples are raising children).

12. Domestic partnerships lack the social meaning associated with marriage, which is regarded as the definitive expression of love and commitment in the U.S. Domestic partnerships do not provide gays and lesbians with a status equivalent to marriage.

13. California domestic partnerships may not be recognized in other states and are not recognized by the federal government.

14. Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage, or otherwise affect the stability of opposite-sex marriage.

15. Proposition 8 places the force of law behind stigmas against gays and lesbians, requires California to treat same-sex couples differently, amends the California Constitution to codify distinct and unique roles for men and women in marriage, and has had a negative fiscal impact on California and local governments.

16. Children do not need to be raised by male and female parent to be well-adjusted and having opposite-sex parents does not increase the likelihood that a child will be well-adjusted.

17. The Proposition 8 campaign relied on fears that children exposed to the concept of same-sex marriage may become gay or lesbian. Campaign advertisements never gave a reason for protecting children from same-sex marriage, but insinuated that learning about it could make a child gay or lesbian and that parents should dread having a gay or lesbian child.

Therefore, Judge Walker has ruled that the right to marry is a fundamental right. Traditions of marriage changed as courts invalidated race restrictions and the concept of coverture gave way to belief in equality of husbands and wives, but the same-sex marriage exclusion continues to exist as an artifact of a time when genders were seen as having distinct roles in society and in marriage. That time has passed. Plaintiffs do not seek recognition of a new right to same-sex marriage, but rather, recognition of their relationships as marriages. Domestic partnerships do not fulfill Californias due process obligation because they do not provide the same social meaning as marriages and exist solely to differentiate same-sex unions from marriages. Proposition 8 is unconstitutional because it denies plaintiffs a fundamental right without a legitimate or compelling reason (it is not narrowly tailored to serve a compelling state interest). Proposition 8 proponents have failed to show rational basis for excluding same-sex couples from marriage (tradition alone is not enough; state has no interest in disadvantaging an unpopular minority group because of its unpopularity; permitting same-sex marriage would not be sweeping social change, have adverse effects on society or institution of marriage, or be difficult to implement). Proposition 8 violates Equal Protection Clause because it prevents California from fulfilling its constitutional obligation to provide marriage on an equal basis.

Having found that Proposition 8 is unconstitutional, Judge Walker ordered entry of judgment permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8; and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8.

Judge Walker also ordered the parties to submit argument on whether his judgment should be stayed pending the appeal of his decision. The Proposition 8 proponents promptly filed their appeal.

In the case of Haworth v. Superior Court (Ossakow), California Supreme Court has ruled that a former judge, serving as a neutral arbitrator in a case involving an allegedly-botched plastic surgery, was not required to disclose to parties that he had been publicly censured for creating courtroom environment where discussions of sex and improper ethnic and racial comments were customary. After medical doctor performed a cosmetic surgery on Plaintiffs lip, Plaintiff allegedly suffered stiffness and numbness in her lips and her smile became somewhat lopsided. Plaintiff, on whom several other doctors had performed other plastic surgeries, then sued the doctor for medical malpractice. She claimed that she had not given consent for the doctor to use the surgical procedure he had, that its use was below applicable standard of care, and she had been harmed as result.

In accordance with an arbitration agreement, Plaintiffs suit was referred to arbitration; the parties chose retired Judge Norman Gordon to act as their neutral arbitrator. As required by law, Judge Gordon submitted a disclosure statement in which he revealed his involvement with other members of defense counsels firm, but not other information.

After arbitration concluded, arbitration panel rendered a split decision, authored by Judge Gordon, in favor of doctor, finding that Plaintiff had failed to establish lack of consent, doctors choice of procedure did not fall below applicable standard of care, Plaintiffs expert could not give definitive answer on causation, and doctors expert was more credible.

In April 2007, Plaintiff found out that Judge Gordon had been publically censured in 1996, for engaging in conduct prejudicial to the administration of justice that brought his judicial office into disrepute. According to the findings made by the Commission on Judicial Performance (as adopted by California Supreme Court in Gordon (1996) 13 Cal.4th 472), between April of 1990, and October 27, 1992, Judge Gordon made sexually suggestive remarks to staff on several occasions, asked sexually suggestive questions, used crude and demeaning names and descriptions and an ethnic slur to refer to a staff member, described fellow jurists physical attributes in demeaning manner, and sent a staff member a sexually suggestive postcard at the courthouse. Those findings noted that Judge Gordons actions were not intended to cause shame, embarrassment, or injury, to coerce or to vent anger but were done “in an ostensibly joking manner.” Still, they caused a courtroom environment in which discussions of sex and improper comments were commonplace.

Plaintiff then petitioned to vacate the arbitration award, claiming, among other things, that Judge Gordon should have disclosed that he had been publically censured. Trial Court found that Judge Gordons censure was information that would cause a reasonable person to question whether Judge Gordon could be impartial in this case, and vacated the arbitration award. When the doctor petitioned the California Appellate Court for a writ of mandamus to reinstate the arbitration award, the Appellate Court summarily denied that petition. The California Supreme Court then granted review and transferred the case back to the Appellate Court with directions to issue an alternative writ. The Appellate Court did, but then filed an opinion again denying the petition, finding that under either de novo or substantial evidence standard, disclosure of censure was required because it was based on Judge Gordons disparaging female associates on basis of their attributes, which might cause a reasonable person to doubt that he could be impartial in a case involving womans cosmetic surgery.

California Supreme Court again granted a review, and now, the Supreme Court has reversed the Appellate Courts decision. The Supreme Court has ruled that (1) applicable standard of review in arbitrator disclosure cases is de novo; (2) nothing in Judge Gordons public censure would lead a reasonable person to doubt that Judge Gordon could be fair to female litigants generally or in context of this case; (3) a reasonable person would assume that Judge Gordon had learned from past mistakes, would be able to put personal attitudes aside, and would decide case based on evidence; (4) gender or gender stereotyping was not part of a subject matter or material to this case; (5) scope of arbitrators duty of disclosure is not as broad as that of a trial court judge; and (6) broadening scope of arbitrators duty of disclosure would undermine finality of arbitration awards. The Supreme Court has ruled that the Appellate Court erred by determining that Judge Gordon was required to disclose prior censure and reverses that decision.

The Dissent would have affirmed the Appellate Courts decision. The Dissent believes that (1) the majority sacrifices the integrity of the arbitration system on the altar of arbitral finality; (2) additional findings of Commission on Judicial Performance (of which dissent would take judicial notice) show that Judge Gordon harbored disrespectful, disdainful and denigrating attitudes toward women, on which he was either unwilling or unable to refrain from acting; and (3) those findings would lead reasonable person to doubt Judge Gordons ability to put aside his contempt for women and his single-minded focus on their sexuality, while serving as arbitrator in gender-sensitive case where subject matter could bring biased attitudes into play.

A California Appellate Court has ruled that the Trial Court did not make a mistake in terminating Fathers parental rights in a step-parent adoption proceeding because there was sufficient evidence that Father had left the children in Mothers custody and control, without contacting them or providing for their support, for more than one year (as measured from the time that Mother assumed full custody). In the case of In re Marriage of D., Mother and Father married in 1991, and subsequently had three children in 1996, 1997 and 1999, respectively. In March of 2000, Mother filed for legal separation, asserting that in February of 2000, she had taken the children and moved to a domestic violence shelter because Father had become increasingly unstable and violent. Trial Court issued a Temporary Restraining Order against Father, barred him from having visitation with the children, and ordered him and Mother to participate in mediation with Mediator. Mother and Father later agreed that Father could have supervised visitation with the children beginning in April of 2000, plus twice-weekly telephone contact, if Mediator permitted it. Father also agreed to drug testing and individual counseling.

In June of 2000, Mother and Father stipulated that Father could have visitation with Children supervised by Mothers parents. At the hearing on July 20, 2000, which Father did not attend, Trial Court heard testimony from Mediator, who voiced concern for Mothers safety because of Fathers uncontrolled behavior. Trial Court suspended Fathers visitation, ordered Father to pay child support, and issued permanent restraining orders protecting Mother and her parents. Trial Court also awarded Mother the sole legal and sole physical custody of the children, but did not order any visitation for Father.

On August 23, 2000, Mother filed for divorce. The next day, Father filed a motion to set aside the restraining order, to reinstate the custody mediation, and to modify the child support order. Trial Court subsequently denied Fathers motions, advising Father that it would not consider modifying visitation without written report from Mediator. Regardless of existing orders, Mother and Father later stipulated that he could have monitored visitation with the children between May 2000, and February 2001, to be monitored by either a professional organization, Mothers parents or Mothers brother.

In June of 2001, a report submitted to Trial Court, Mediator stated that Fathers visits were marred by his lack of emotional control and his insistence on discussing Mother and the divorce issues with Mothers parents instead of visiting with the children. Mediator reported that Fathers behavior, possible drug use, and attempts to contact Mother were all causing great concern. Mediator also stated that despite having visitation schedule drawn up for him, Father did not contact or visit the children after February 2001. Mediator recommended that Trial Court require Father to undergo psychological evaluation, random drug tests, additional therapy, and anger management classes before permitting him to have any further contact with the children.

At a hearing in July of 2001, Trial Court, per that recommendation, ordered Father to have psychological evaluation, testing, and anger management and individual therapy. Trial Court also ordered Father to keep it, Mediator, and Mothers attorney apprised of his current address and telephone number.

In August of 2001, Father moved to Florida. He failed to attend the August 1, 2001, hearing on child support, custody and visitation. On September 24, 2001, in a Judgment on Reserved Issues, Trial Court awarded Mother the sole legal and sole physical custody of the children, confirmed prior visitation orders, renewed orders for Father to participate in psychological evaluation, psychological testing, random drug tests, anger management and individual counseling, and ordered Father to pay child support. Trial Court also continued its order to Father regarding notification of current address and telephone number. After that, Fathers behavior was characterized by continued violations of the restraining order and sending of angry, threatening phone messages and emails to Mother.

In July of 2003, Mother sought and obtained renewal of restraining orders. In subsequent proceedings, Father sought modification of custody and visitation orders, but Trail Court denied his motions after Father failed to provide proof that he had undergone psychological evaluation or drug testing or completed anger management course.

On May 1, 2006, Mother and her current husband filed a petition to terminate Fathers parental rights and request for step-parent adoption in Sacramento Trial Court. On May 23, 2006, Father filed another motion in Yolo County Trial Court, where all prior proceedings had taken place, seeking modification of custody and visitation orders, to which Trial Court responded as it had to his previous motions. Acting in the step-parent adoption matter, Sacramento Trial Court terminated Fathers parental rights, but the California Court of Appeals reversed that decision on jurisdictional grounds.

In February 2008, Mother filed a petition to terminate Fathers parental rights and for step-parent adoption under California Family Code Section 7822 in Yolo County Trial Court, claiming that Father had abandoned the children by not visiting them since March of 2001, and by failing to support them. In opposition, Father denied leaving or intending to abandon the children and sought modification of visitation orders. Father attached to his pleadings a copy of the psychological report, certificate of completion of anger management course, bill for individual therapy sessions in May and June of 2000, some evidence of 2000 drug testing, and letter of enrollment in chemical dependency program in February 2004. Trial Court appointed counsel for the children and referred the case for evaluation and report by probation department.

At trial, Father testified that he last visited the children in February of 2001, but had been prevented from further visitation by restraining orders and Mothers brothers refusal to talk to him and changing of phone number. Mothers brother testified that his relationship with Father started out friendly, but soured after Father persisted in discussing Mother instead of visiting with the children, was inconsistent in showing up for visits, and failed to follow up when contacted about visitation. Mothers brother stated that he had never prevented Father from visiting the children and had changed his phone number only after he had had no contact with Father for two years.

Mediator testified about continuing concerns over Fathers behavior and suspected drug use, his lack of follow-through with scheduled visitation, and his failure to comply with court-imposed requirements for visitation. Other evidence showed that Father was behind in his child support payments in the sum of $336,648, and except for one $75 payment, he had paid only through wage garnishments and levy on his bank accounts. Although Father claimed to be broke, tax returns showed that he earned more than $77,000 between 2001 and 2003, and other evidence showed that Father was selling welding equipment on cash basis.

When trial concluded, the childrens attorney urged Trial Court to terminate Fathers parental rights on basis of his abandonment of the children and their best interests. Trial Court found that Father had left the children in Mothers custody and care in early 2001, and had failed to provide support or contact them for more than one year. Concluding that it would be in the childrens best interests to terminate Fathers parental rights, Trial Court made that order.

Father appealed, but now the California Court of Appeals has affirmed the Trial Courts decision. The Appellate Court has ruled that (1) Trial Court correctly determined that the date from which to determine Fathers abandonment of the children is the date when he voluntarily left the children in Mothers custody and control (not the date on which Mother left Father and moved to the shelter); (2) substantial evidence showed that Father, by his own actions, abandoned the children after February 2001; and (3) evidence of existing high child support arrearages is sufficient to establish that Father has failed to support the children (Mothers failure to insist on payment is irrelevant). Thus, the Appellate Court has held that Trial Court did not err in terminating Fathers parental rights under California Family Code Section 7822.

A Tax Court has ruled that non-custodial Father is not entitled to claim dependency exemption because custodial parent Mother failed to complete I.R.S. Form 8332 releasing the exemption and the divorce judgment, which Father attached to return, does not contain substantially same information. In the case of Thomas v. Commissioner, when Arizona resident (Father) was divorced from Mother in June of 1994, their divorce judgment awarded custody of their 3 year-old daughter to Mother; Father was awarded 30 days of visitation in summer, plus reasonable visitation in Daughters State of residence. Father was also ordered to pay child support of $400 per month through Arizona Trial Court. The parties divorce judgment further provided that Mother would claim the dependency exemption and child tax credit for tax year 1995, and succeeding odd-numbered years, while Father would claim the exemption and credit in even-numbered years, if he was current in his child-support payments. Mother was required to execute necessary forms to permit Father to claim exemption and credit, but only if Fathers child support payments were not in arrears.

In 2006, Father was not delinquent in his child support payments for Daughter, who lived with Mother in Ohio. On his 2006 federal income tax return, prepared by his CPA, Father claimed dependency exemption and child care credit, but the CPA subsequently notified him that his return was rejected from electronic filing because someone else claimed dependency exemption. The CPA then filed Fathers paper return, to which Father attached copy of the divorce judgment, but not the I.R.S. Form 8332 exemption release. I.R.S. sent a deficiency notice to Father, claiming that he was not entitled to claim either the dependency exemption or child tax credit.

Father then petitioned the U.S. Tax Court for relief, but the Tax Court has now ruled in favor of I.R.S. The Tax Court has ruled that (1) per I.R.C. 152(e), Father, as non-custodial parent, was not entitled to claim the dependency exemption unless (a) Daughter received more than half of her support from Mother and Father, (b) Mother and Father were divorced, separated, or living separate and apart for at last six months of 2006, (c) Daughter was in custody of either Mother or Father more than half of 2006, and (d) Mother, as custodial parent, released dependency exemption and Father attached the Form 8332 release or document conforming to its substance to his return ; (2) Father could meet conditions (a), (b), and (c), but not (d); (3) the divorce judgment did not qualify as conforming document because it lacked Social Security numbers for Mother and Father, Mothers signature was not dated, and release of exemption was conditioned on Fathers being current with child support payments; (4) Father could not claim dependency exemption; and (5) Fathers being unable to claim dependency exemption meant that he was also ineligible to claim child tax credit. The Tax Court therefore has concluded that although it is sympathetic to Fathers predicament, it is bound by statutes and regulations as written.

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.