January 24, 2013

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

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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December 27, 2012

Court Upholds Order Unsealing Pleadings in NASCAR CEO's Divorce Matter

file8651274380509.jpgThe issue of confidentiality of financial records in a divorce matter recently came before the North Carolina Court of Appeals. The court affirmed a lower court's order unsealing the documents in a man's post-divorce proceeding against his ex-wife, in which he alleges that she breached confidentiality provisions in their pre-nuptial agreement. After one judge initially sealed the pleadings, a different judge unsealed them, citing the public's interest in open judicial proceedings. The appellate court affirmed this decision in France v. France, No. COA12-284, slip op. (N.C. App., Dec. 31, 2012).

The plaintiff, Brian France, was married to and divorced the defendant, Megan France, on two separate occasions. Their second marriage, which began in December 2007, included a pre-nuptial agreement. In exchange for certain financial benefits in the event of divorce, the defendant agreed to keep any financial information in her possession about the plaintiff confidential, unless she was compelled by law to disclose such information. Breach of the confidentiality provisions, according to the pre-nuptial agreement, would constitute a material breach creating a cause of action for damages.

The couple separated in 2008. While the details of their divorce were kept confidential, statements made on the record in court indicated that the plaintiff, who is the chief executive officer of the National Association for Stock Car Auto Racing (NASCAR), would pay the defendant $9 million, as well as child support of $10,000 per month and alimony, for a period of ten years, of $32,000 per month.

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December 21, 2012

Technology Intersects with Privacy and Discovery in Divorce Cases

_DSC0835.JPGDiscovery in divorce litigation can be protracted and difficult, as it may involve the parties' efforts to find "dirt" about each other. New technologies have expanded people's ability to communicate, and accordingly, the number of potential sources for incriminating information in a divorce matter. Communications technologies, like email and social media, are an obvious potential source of discovery. New, "smart" technologies, including not only smartphones but other devices that record and communicate data, are also becoming a frequent subject of discovery requests and subpoenas. As these technologies quickly develop, the usefulness of such data in divorce litigation and other legal matters, especially criminal investigations, must be balanced with privacy rights.

One of the newest innovations are "smart meters," used to measure usage of energy in homes and share data with the utility companies, according to an article this month by National Geographic. Devices like these may one day form part of a "smart grid," which may allow utilities and other industries to meet customers' needs efficiently and respond quickly to outages and other problems. The technology is also controversial, as people may not know exactly what data their device is sending, who may see that data, and how the recipient may use that data. Data on daily energy usage, for example, could easily establish when someone is home or away, and hackers could intercept the data and use it to plan burglaries. A less alarmist view is that the data could also be subject to subpoena during a divorce case, adding a whole new dimension to the type of evidence introduced in a court proceeding.

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December 14, 2012

State Laws Present Difficulties for Transgender Man in Divorce Case

701085_49601368.jpgThe case of an Arizona man seeking a divorce from his wife has encountered difficulty based on conflicting provisions of state law. The husband in the case, Thomas Beatie, is a transgender man, having been born a woman and transitioned to male through a variety of means. He obtained legal documents stating that he is a man, and he legally married his wife. He considers himself the father of his three children, but he, rather than his wife, gave birth to them, since he still has female reproductive organs. This has created a dilemma for the judge presiding over the couple's divorce, as Arizona law does not recognize same-sex marriages, and it is not clear if the state recognizes the validity of a marriage between a transgender man and a woman.

Beatie began the process of transitioning to male in 1997, when a psychologist determined that he had "male gender identification." He underwent testosterone therapy, and had his first of a series of surgeries in 2002. Arizona law allows a person, after a sex change operation, to obtain a new birth certificate and other official documents upon written request. After the first set of surgeries, he legally became a man.

He began dating his soon-to-be ex-wife, Nancy, in 1998, and they were married in 2003. Nancy was unable to have children, so Thomas bore all three of the couple's children. He made headlines as "The Pregnant Man," giving birth to children in 2007, 2009, and 2010. The couple separated in early 2012, and filed for divorce in Maricopa County Superior Court.

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December 6, 2012

Juvenile Court May Exercise Jurisdiction Over a Child Even Without Parental Negligence or Abuse - In re Maricela H.

800px-OldPasadena3.JPGA mother appealed a court order giving jurisdiction over her daughter to the juvenile court. She argued, in In re Maricela H., that insufficient evidence existed to support the court's finding because no evidence demonstrated that she was in any way abusive or negligent. The appellate court held that the plain language of the statute does not require actual abuse or negligence, and that the evidence supported the court's ruling. A dissenting judge held that, even with the majority's interpretation of the statute, the juvenile court's jurisdiction was unwarranted.

According to the appellate court's opinion, the mother had little to no control over her daughter, Maricela H. The girl rarely told her mother where she was going, and she abused drugs and alcohol. The mother took Maricela's son in 2010 and cared for him after Maricela gave birth to him at the age of 15. Maricela reportedly left home again on September 16, 2011 and threatened to take the baby with her. In response, the mother contacted the police and the Department of Children and Family Services (DCFS).

DFCS took the baby into custody and placed Maricela into a Pasadena group home. Maricela reportedly expressed a desire to improve, but she continued to act out and abuse drugs. After she ran away from the home on November 8, 2011, she was detained, and DCFS filed a petition under California Welfare and Institutions Code § 300 to have her declared a dependent. Her behavior reportedly improved after that incident. The court declared her a dependent under § 300(b), based on a finding that she was at risk of "serious physical harm or illness" due to her mother's "failure or inability...to adequately supervise or protect" her. The mother appealed this decision.

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November 29, 2012

Parent's Drug Use, Tardiness to School are Insufficient to Show Risk of Imminent Harm to a Child in a Dependency Proceeding

933457_17536502.jpgA mother appealed a juvenile court's declaration of dependency over her eleven year-old daughter in In re Destiny S. The court had taken her daughter from her custody and placed her with a family member. It entered an order finding that the daughter was at risk of physical harm, citing the daughter's school tardiness during the previous year and the mother's history of drug use. The appellate court reversed the trial court's ruling, finding that the evidence did not support any risk of "serious physical harm."

The Department of Children and Family Services (DCFS) received a report in September 2011 that an unknown individual was sexually abusing eleven year-old Destiny S. After an investigation, DFCS determined that the allegation was "unfounded." Destiny's mother, Rosemarie H., admitted to DFCS investigators that she smoked marijuana every week, and that she had previously used methamphetamine. DFCS petitioned the court to declare Destiny a dependent because of Rosemarie's drug use. It cited § 300(b) of the California Welfare and Institutions Code, which gives the juvenile court jurisdiction over a child when the court finds "substantial risk" of "physical harm or illness" because a parent is unwilling or unable to provide proper supervision. The court placed Destiny in the custody of her maternal grandmother when her mother tested positive for methamphetamine use.

Evidence presented at a hearing in January 2012, which was not contradicted, showed that Destiny was a "healthy, happy preteen," that she had a good relationship with her mother, and that her mother took good care of her. Destiny stated that she wanted to live with her mother. The principal of Destiny's school said that she attended school and had no discipline problems, and that the tardiness problems of the previous year had not continued. The mother had three months of negative drug tests. The juvenile court nevertheless concluded that Destiny faced the risk of substantial physical harm in her mother's custody, based on her history of school tardiness and her mother's drug use.

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November 22, 2012

Interstate Divorce Case Lands in California, Results in Large Child Support Order

15-18_foot_swell_taken_from_Corona_Del_Mar,_California.JPGIn affirming a trial court's child support order, an appellate judge quoted from Aesop's Fables, paraphrased as "be careful what you wish for." The case, In re Marriage of Barth, involved a divorce with petitions filed in two states, Ohio and California, a trip to the Ohio Supreme Court, and a final order in California that was far less favorable to the appellant husband. Ultimately, questions of credibility regarding the husband's financial representations persuaded the appellate court to affirm the large child support order.

The parties, Jeffrey and Andrea Barth, were married in 1989. They had two children, and they lived in Ohio until 2004, when the husband took an auditing job in California and moved to Orange County. The wife and children stayed behind in Ohio for about five months, during which time she quit her job and sold the family home. Several weeks after they joined the husband in California, he confessed to extramarital affairs. The wife and children returned to Ohio within days. She filed a divorce petition in Ohio on August 24, 2004, and he filed one in California the following day.

The Ohio divorce case went through litigation for nearly three years. The husband denied that the Ohio courts had subject matter jurisdiction, as the wife no longer had the required period of residency in the state at the time she filed. The Ohio court eventually entered an order setting current and retroactive child support. The husband appealed all the way to the Ohio Supreme Court, which ruled in March 2007 that the wife's brief stay in California ended her Ohio residency. It vacated all prior orders and dismissed the case.

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November 15, 2012

California Couple in Ghana to Adopt Children Accused of Child Trafficking and Jailed

Gh-map.pngA couple who traveled from California to Ghana to adopt several children found themselves accused of child trafficking and imprisoned in the west African nation. Although a Ghanaian judge had reportedly approved the adoption, police arrested the couple and took the children away. After social media coverage of the arrest and detention led to intervention by U.S. authorities, the couple was released and reunited with the children. Eventually, they were reunited with the children in California. The case illustrates the importance of federal and international laws in many state adoption and child custody cases. As San Diego reportedly continues to experience high human trafficking rates, and the issue receives extensive scrutiny from law enforcement, these laws are critically important to understand.

The Associated Press reported on the arrest of Sol and Christine Moghadam in June 2012. The Irvine couple had two biological children, and they had applied to adopt four siblings from Ghana. They had traveled to Ghana to visit the children and finalize some legal procedures. A judge approved their application and named them the legal guardians of the four children, but they still needed visas from the U.S. State Department. Police reportedly arrested the couple as they were taking all six children to celebrate the judge's order. According to the AP, the police had received an anonymous phone call reporting that the Moghadams had forged the judge's signature on the legal documents, and accusing them of child trafficking.

Police put the couple in a jail cell and took the children to an orphanage, where they remained while the couple was in custody. The Moghadams were not able to contact the U.S. Embassy, but Christine reportedly still had her cell phone with her in the jail cell. She posted an account of what had happened on her Facebook page, and the story spread around the globe within twenty-four hours. U.S. officials intervened on the Moghadams' behalf, and Ghanaian police released them and their two biological children. According to a blog maintained by the Moghadams, the four Ghanaian children were reunited with them in the U.S. in September.

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November 8, 2012

Domestic Violence and Divorce Cases in San Diego

867286_90362044.jpgSan Diego County has one of the highest rates of domestic violence in California, based on calls to law enforcement. It also has a wealth of resources available to victims of domestic violence and people who fear they may become victims. California's family laws provide some resources and remedies in cases where domestic violence is a factor, including protective orders, but these are generally only available through the courts. Everyone should be aware of resources like hotlines, shelters, and law enforcement programs that may be able to help in an emergency.

"Domestic violence" is generally defined as force, or the threat of imminent force, against an adult member of a person's household. This could include a spouse or former spouse, a dating partner, the other parent of a person's child, or some other adult relative by blood or marriage. The gender of neither an alleged assailant nor an alleged victim is relevant to the legal definition of domestic violence.

A review of five years of data, ending with 2010, on calls made to law enforcement throughout California revealed that, out of the ten largest counties in the state, San Diego County had the second highest volume of domestic violence calls in four of the five years. Only Fresno County had a higher rate. A spokesperson for the District Attorney's Office suggested, in a report by the San Diego Union-Tribune, that programs supporting domestic violence victims might result in a higher volume of calls, encouraging reporting of incidents by people who might not otherwise feel safe to do so.

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October 25, 2012

Court Awards Damages to Man for Intentional Misrepresentation of a Child's Paternity: Hodge v. Craig

Argue.jpgIf a man acknowledges paternity of a child based on the mother's assurance that no one else could be the father, then discovers, after a divorce and order for child support, that he is not the child's biological father, is he entitled to damages? The Supreme Court of Tennessee, in Hodge v. Craig, addressed the question of whether the person acknowledged as the father could pursue a claim for fraud or intentional or negligent misrepresentation against the mother. The trial court awarded the man over $100,000 in damages for child support and other payments made pursuant to the divorce decree. An appellate court reversed the order, but the state Supreme Court reinstated the judgment with a modified damage amount.

Chadwick Craig and Tina Marie Hodge met in high school, when they were both sixteen years old and began dating. Hodge reportedly had a daughter who was almost one year old at the time. They briefly separated in October 1991, and Hodge had sexual relations with another person. When she got back together with Craig, she never told him about this encounter. She learned she was pregnant the following month and told Craig that he was the father. The two were married in December 1991. Hodge gave birth to a son in June 1992. Craig also adopted Hodge's older child. He had a vasectomy in 1999 when he and Hodge decided they did not want more children.

After nine years of marriage, Craig and Hodge separated in October 2000, and their divorce became final in February 2001. Craig was ordered to provide health insurance for both children and pay child support. Hodge remarried in 2002. Craig moved to Georgia in 2003 and remarried. His son, who was in his early teens at that point, came to live with Craig in 2005. Based on a suspicion that he was not the biological father of the child, Craig obtained a DNA sample from the boy while he slept. A test confirmed Craig was not the biological father.

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October 18, 2012

California Supreme Court Affirms Adjudication of Dependency of Two Children Due to Sibling's Death in a Car Accident: Los Angeles Co. Dep't of Children and Family Svcs. v. William C

939161_49088660.jpgThe California Supreme Court affirmed an adjudication of dependency for two children in Los Angeles Co. Dep't of Children and Family Svcs. v. William C. A father had appealed the adjudication of dependency of his two surviving children based on a section of the dependency statute, California Welfare and Institutions Code § 300(f), that allows a dependency adjudication when a parent is found to be responsible, through abuse or neglect, of the death of another child. The Supreme Court held that the statute did not require a finding of criminal negligence, nor did it require proof of a present risk to the surviving children.

According to the court's opinion, William C. and Kimberly G. were the parents of three children: Ethan, Valerie, and Jesus. The parents separated in the spring of 2009, and the children lived with William in William's mother's home. On June 17, 2009, William noticed that Valerie's arm was injured, apparently due to falling off of a bed. He intended to take her to the hospital, but did not have a child safety seat in the car he was driving. Instead, Valerie, who was about two years old, sat in William's sister's lap while William drove. A car collided with William's car, and Valerie sustained fatal injuries. Although William was reportedly not at fault in the accident itself, he faced criminal charges for child endangerment. He reportedly admitted to transporting a young child without a safety seat and paid a $100 fine.

The Los Angeles County Department of Children and Family Services (the "Department") responded to a report of the neglect of Ethan and Jesus about a week later. The Department claimed the children "were dirty and seemed unsupervised." Opinion of the Court at 5. The Department said that it also learned that Kimberly had a history of mental health problems and cognitive impairments, and had an alleged pattern of domestic violence against William. Kimberly's family, meanwhile, alleged that William's family severely neglected the children.

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October 11, 2012

California Court Rules on Division of Public Employee Retirement Benefits in Divorce

656184_25956468.jpgThe California Court of Appeals for the First District considered the characterization of benefits from the California Public Employees' Retirement System (CalPERS) purchased by the husband during the marriage, but based on services performed prior to the marriage. The case, In re the Marriage of Green, was a matter of first impression for the court. The trial court found that the benefits were the husband's separate property, but the appellate court reversed that ruling. It ruled that the benefits were community property, and remanded the case for determination of allocation between the parties.

The husband, Timothy Green, served in the United States Air Force for four years between 1982 and 1986. He joined the fire department in Dublin, California in 1989, and he married Julie Green in 1992. His employer participated in CalPERS, which included a program that allowed an employee who served in the military to purchase up to four years of additional CalPERS service credit. He exercised this right in 2002, using around $11,000 of community funds to purchase the credits.

The wife petitioned for divorce in 2008. The parties disputed whether to characterize the military service credits as separate or community property. The husband argued that the credits were separate property, because his right to the credits arose before the marriage. The wife claimed that they were community property because they were obtained during the marriage using community funds, and she sought a separate account for fifty percent of the credits. The trial court ruled that the credits were separate property, but ordered the husband to reimburse the wife about $6,700 for half of the community funds used to make payments.

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October 4, 2012

Ex-Wife's Motion to Extend Spousal Support Denied by Court, Finding Lack of "Reasonable Efforts" to Become "Self-Supporting"

1376892_12302791.jpgA California court denied a woman's motion to modify a spousal support order in In re Marriage of Khera and Sameer, finding that she had not adequately shown evidence of changed circumstances. The original spousal support order provided for a gradual decrease in support payments until an eventual termination date. The ex-wife (referred to herein as the wife for brevity) sought to delay the date for termination of support payments.

The husband, Sameer Khera, filed for the dissolution of his marriage to Madhu Sameer in October 2003. They had been married since 1986 and had three children. After they agreed on the record to some of the terms of the divorce in May 2007, a court entered a final judgment on the remaining issues in February 2008. Under the agreement and final judgment, the husband was obligated to pay spousal support of $2,650 per month beginning in June 2007. Monthly support would decrease to $1,650 on June 1, 2009, and would terminate entirely on June 1, 2010.

This type of spousal support order, in which the amount decreases over time, is known in California as a Richmond order, after In re Marriage of Richmond, 105 Cal.App.3d 352 (Cal. App. 1st Dist. 1980). Spousal support, under California law, is intended to allow the recipient spouse to maintain the same reasonable standard of living as during the marriage. The purpose of a Richmond order is to allow the recipient spouse time to become financially self-sufficient. The Richmond court held that a court should retain jurisdiction over a spousal support order to ensure that the recipient spouse has the ability to meet their own financial needs by the termination date, and to modify the support order if a spouse can show good cause.

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