January 2013 Archives

January 30, 2013

Man Takes Wife's Name After Wedding, Is Accused of Fraud by State

file000468769683.jpgA Florida man who decided to take his wife's last name discovered that the state's Department of Motor Vehicles (DMV) suspected him of fraud as a result. Florida, along with most U.S. states, only provides a simple method for women to change their names upon marriage. A few states, including California, allow spouses of any gender to take the other spouse's name. While a wife taking her husband's name is a longstanding tradition, many couples are finding other options.

According to Reuters, Lazaro Dinh, née Sopena, married Hanh Dinh in 2011. In an "act of love," he decided to take her last name to preserve her family's name. His wife, who is originally from Vietnam, reportedly lived in refugee camps with her sisters, spending seven years separated from their father, before immigrating to the United States in 1990.

After the wedding, Dinh was able to obtain a new driver's license from the Florida DMV by showing his marriage certificate to a clerk and paying a fee. This is the procedure followed by newlywed women all over the country. He also obtained a passport showing his married name. In December 2012, over a year after the wedding, Dinh reportedly received a letter from the DMV, addressed to Lazaro Dinh, that accused him of fraud. It stated that the DMV would suspend his license within weeks.

Dinh called the main DMV office in Tallahassee and spoke to an official who told him he should go through the non-marital name change process. This requires a petition to a court with a $400 filing fee. The DMV official allegedly told Dinh that the marital name change process "only works for women." At a hearing on January 14, the DMV issued a Final Order holding that his license suspension for "fraud" was proper. Dinh is appealing the order, but remains unable to drive.

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January 24, 2013

Court Rules on Definition of a "Nonminor Dependent" Under California Law

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Children in California's foster care system used to "age out" of the system automatically upon reaching the age of eighteen, abruptly ending their access to services. Young adults found themselves turned loose without necessarily having the means or the skills to thrive in the adult world. California passed the California Fostering Connections to Success Act (CFCSA) to correspond to a federal statute and allow "nonminor dependents" to continue in the foster system long enough to acquire the means to join society. A California appellate court recently considered how to apply the definition of "nonminor dependent" in the case of a child who turned eighteen while in the system. In re K.L., No. D061577, slip op. (Cal. App. 4th, Oct. 25, 2012).

The CFCSA became effective on January 1, 2012. Juvenile courts may maintain dependency over qualifying individuals who have turned eighteen but not yet turned twenty-one. The California Welfare and Institutions Code defines a "nonminor dependent" in § 11400(v) as someone who turned eighteen while in a foster care placement under county or Indian tribal jurisdiction; who was eighteen years old or younger on January 1, 2012; and who is involved in a "transitional independent living case plan."

The case before the court involved K.L., a child who turned eighteen in September 2011. The San Diego County Health and Human Services Agency (the "Agency") had filed a petition under Welfare and Institutions Code § 300(d) based on allegations that her father had sexually abused her. The Agency removed her from her father's home in September 2010, claiming that K.L.'s mother knew she was not safe in her father's home, but had moved out three months earlier. The court declared K.L. a dependent child and ordered reunification services for the mother.

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January 10, 2013

Child Custody Order Reversed Based on Evidence of Court-Appointed Expert Witness' Bias

Laguna_Beach.jpgThe California Court of Appeals, Fourth Appellate District reversed an order awarding sole custody of a child to the mother. The court ruled in In re Marriage of Adams, Case No. G045920, slip op. (Cal. App. 4th, Oct. 16, 2012), that a court-appointed expert witness displayed bias against the father and in favor of the mother that unduly influenced the remainder of the proceedings.

The parties' son, identified as J., was diagnosed with Asperger's Syndrome, an autism spectrum disorder, when he was very young. By all accounts J. is a very intelligent child, and both parents care for him very much. The parents have differing views on the best way to care for him, however. When J.'s parents divorced in 2008, they agreed to submit future disputes regarding J. to a licensed mental health professional who would act as a special master. If either parent disagreed with the special master's recommendation, they could petition the court. The parents shared joint custody of J., with a schedule of visitation periods.

A disagreement regarding where J. should attend middle school arose in 2010. The parties eventually agreed to the appointment of David J. Jimenez as an expert witness, pursuant to California Education Code § 730, to conduct psychological evaluations of J. and the parents, in order to make a recommendation as to custody and school enrollment. Jimenez recommended that J. attend school in the Laguna Beach Unified School District, the mother's preference.

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January 10, 2013

Modification of Spousal and Child Support Orders During Pending Divorce Litigation Reviewed by California Appellate Court

file0001373070796.jpgA husband appealed pendente lite orders terminating spousal support and declining to modify child support in a divorce matter. In re Marriage of Freitas, No. D060281, slip op. (Cal. App. 4th, Oct. 3, 2012). The trial court entered orders awarding child support to the wife and spousal support to the husband. It later declined to modify the child support order, holding that a recent precedent decision prohibited it from doing so, but it terminated the wife's child support obligation, citing the husband's prior conviction for domestic violence. On appeal, the husband argued that both decisions constituted error. The appellate court affirmed the spousal support order and remanded the child support order.

Christine and Kevin Freitas separated in March 2010 after more than eighteen years of marriage. The couple have two children, who were thirteen and nine at the time of the separation. The wife filed for divorce in April 2010. The husband filed an order to show cause (OSC) that August requesting spousal support and child support. The wife opposed a spousal support order, informing the court that the husband had an October 2006 conviction for battery against her, and that in July 2010, the court entered a domestic violence restraining order against the husband. After a hearing on the OSC in October 2010, the court awarded the husband $800 per month in spousal support while the divorce was pending, and awarded the wife $7 per month in child support. The court reserved jurisdiction to modify the support awards for September and October, giving the husband until January 4, 2011 to present additional evidence of her income.

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