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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September 27, 2012

Reunification with Children Denied for California Father Because of Abuse Allegations

1401191_72228763.jpgA San Diego father appealed a superior court ruling in a juvenile dependency case that denied him reunification with his two sons. The Fourth District Court of Appeals reviewed In re A.G., et al and affirmed the superior court's ruling. It held that California law required the superior court, given the circumstances of the case, to deny services to the father, and that the father failed to meet his burden of proof that reunification would be in his sons' best interests.

The appellant, Hugo G., is the presumed father of four children, two sons and two daughters. The San Diego County Health and Human Services Agency (HHS) filed dependency petitions for all four children in October 2011. At that time, the two sons were eight and three years old, and the daughters were eleven years and nine months old, respectively. The dependency petition alleged that Hugo sexually abused the older daughter, A.G., in January 2010. HHS asserted jurisdiction over the other three children on the grounds that a sibling had been abused.

An amended petition, filed by HHS in November 2011, alleged that Hugo physically abused A.G. and the two sons beginning in September 2010. The court denied Hugo's request for reunification services, including a child abuse class, but ordered them for the children's mother. Hugo appealed the superior court's denial of reunification services only as to the two sons.

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September 20, 2012

Husband Ordered to Pay Wife's Total Attorney's Fees in California Divorce Case After Refusing to Produce Financial Information

1162216_39371391.jpgWhen a husband appealed of an award of attorney's fees in a divorce case, the California Court of Appeals for the Second District applied the "disentitlement doctrine" and dismissed the appeal outright. The husband's argument on appeal in Marriage of Hofer was that the trial court did not consider evidence of his own financial hardships when it ordered him to pay his wife's attorney's fees. The appellate court ruled that this lack of evidence was entirely due to the husband's own refusal to abide by the trial court's discovery orders.

John Hofer filed a petition for the dissolution of his marriage to Lisa Hofer in January 2009, after about eighteen years of marriage. John derived much of the family's income from several business entities owned by his family, in which he owned some interest. He exclusively managed these assets of the marriage. During the marriage, Lisa was never employed outside the home, so all income of the marriage came from John.

The Superior Court of Ventura County granted their divorce in 2010 after several prolonged discovery battles. At a hearing on Lisa's motion for attorney's fees, the court found that Lisa had incurred nearly $165,000 in attorney's fees, and that John had paid more than $47,000 of that amount for her. John had paid his attorneys more than $300,000. California law requires courts to make reasonable orders ensuring both parties have access to legal representation. Because Lisa had no resources or income of her own, and John had the apparent ability to pay at least $347,000 in attorney's fees, the court ordered John to pay an additional $200,000 towards Lisa's attorney's fees and costs. John appealed this ruling.

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September 13, 2012

California Court of Appeals Affirms Parental Rights of Former Same-Sex Couple

505709_75076992.jpgA woman appealed a trial court's ruling, which held that her former partner is the child's second parent based on the Uniform Parentage Act (UPA). In her appeal in L.M. v. M.G., the woman argued that the court could not declare anyone to be the child's second parent because the child had a single-parent adoption decree. The Fourth District Court of Appeals was not persuaded and affirmed the trial court's ruling.

From 1998 to 2003, M.G. and L.M. cohabited as same-sex partners, although they never registered a domestic partnership with the state. M.G. sought to adopt a child from a woman in Tijuana, Mexico in 2000. She arranged for the woman to live in California until she gave birth, and the child was born in November 2000. M.G. officially adopted the child in October 2001, and she and L.M. shared childcare duties. L.M. told the court that, at the time of the adoption, they planned on registering as domestic partners, and L.M. planned on adopting the child as a second parent.

California allows a partner in a same-sex couple to adopt the other partner's child. The process generally matches the process of adoption of a child by a stepparent in a marriage. The California Supreme Court recognized this process, commonly known as second parent adoption, in Sharon S. v. Superior Court of San Diego County, 73 P.3d 554 (Cal. 2003).

M.G. and L.M.'s relationship ended in 2003. As a result, the two did not complete the adoption process for L.M. After their separation, the child primarily lived with M.G., but he regularly stayed overnight at L.M.'s house several times a month. L.M. said she did not commence court proceedings to establish parentage at the time on the advice of several attorneys, who noted the lack of legal precedent before the Sharon S. case and M.G.'s willingness to share custody.

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September 6, 2012

Name Changes After a California Divorce

600px-Hello_my_name_is_sticker.svg.pngThe change of a former spouse's name is an often-overlooked issue in divorce. While anyone of any gender may request a name change, it applies particularly to women who take their husband's name upon marriage, but then want to go back to a previous name during or after a divorce. California law makes the process of returning to a previous or maiden name rather straightforward, but a name change requires further steps to ensure that the new or changed name is used consistently in all of a person's identifying information.

Traditionally, a person has been able to change their name simply by publicly using a different name. This is commonly known as the "usage method," although it has many limitations and has fallen out of favor as government requires more and more documentation to prove identification. Minors and convicted felons, for example, must obtain official documentation in order to change their name. Various government agencies require proof of identification as a means to prevent fraud, deter crime, or even pursuant to anti-terrorism statutes. For this reason, it is usually preferable to obtain a court order for a name change.

California law allows a spouse, usually the wife in a marriage, to petition the court during the divorce to change her name to her maiden name, or to another last name she has previously used. After a divorce is finalized, a woman may decide to go back to a previous name, and she can do so by petitioning a California court.

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August 30, 2012

California Appeals Court Addresses Definition of "Remarriage" in Deciding Question of Spousal Maintenance

1383703_77353170.jpgA California appeals court, in Marriage of Left, has upheld an order that a man must continue to pay spousal maintenance, finding that his ex-wife's alleged remarriage was intentionally not legally valid and did not extinguish his maintenance obligation. In reaching its decision, the court examined the legal meaning of "remarriage" for the purposes of determining when to terminate a spousal maintenance order.

The parties, Andrew and Andrea Left, were married in June 2001, and Andrea filed for divorce in November 2005. The two entered into a stipulation in February 2007 in which Andrew, who worked as a stock trader, agreed to pay monthly child support of $14,590 and spousal maintenance of $32,547. The two reportedly attempted to resolve contested issues for some time. A court entered a "status-only" order dissolving the marriage on June 30, 2008, but it reserved jurisdiction over all remaining issues

According to the court's ruling, Andrea got engaged in December 2008. She and her fiance set a wedding date of May 2, 2009, believing that the remaining divorce issues would be settled by then. They planned and made arrangements for the wedding, but in the weeks leading up to the wedding date, Andrea reportedly realized that some divorce issues would remain unresolved. She did not want to enter into a new marriage until the remaining divorce issues were resolved, but she did not want to cancel the wedding ceremony, either. Instead of a "wedding," she and her fiance had a "commitment ceremony" that day. The rabbi who performed the ceremony was aware that they had not obtained a marriage license, although the guests reportedly believed that they had gotten married. They informed Andrew on June 24, 2009, that they were not legally married.

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August 23, 2012

Father Sues for Custody of His Daughter After She Appears on Television Program "Toddlers and Tiaras"

772163_27795068.jpgA father is asking a judge in Kentucky to award him sole custody of his six year-old daughter. He filed a complaint after his child appeared on a cable television show that, many critics contend, sexualizes young children by showing them in beauty pageants. The father, who reportedly has his own history of legal troubles, must convince the judge that the pageant activities and television appearances, as directed by the mother, are harming his daughter, and that awarding him custody would be in her best interest.

The cable network TLC premiered "Toddlers and Tiaras" in January 2009 to showcase child beauty pageants. Contestants in these pageants may be as young as four or five but compete in seemingly "adult" attire, including makeup, gowns, and high heels. Lindsay Jackson reportedly began entering her daughter, Maddy Verst, in pageants when she was thirteen months old. The current controversy may have begun when Maddy appeared on "Toddlers and Tiaras" at the age of five last year. Maddy was dressed as Dolly Parton, complete with padding meant to imitate the famously voluptuous singer's figure. The girl appeared on the cover of People magazine with a headline that read "Gone Too Far?"

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August 16, 2012

California Court Rules that Child Support Order Was Nullified by Parents' Subsequent Marriage to Each Other

442705_38979230.jpgA child support order between unmarried parents was nullified when the parents married each other, according to the California Court of Appeals for the Fourth Appellate District. In Re Marriage of Wilson and Bodine involved a challenge by a father to the state's assertion that he owed child support under an order, entered before the parents were married, for a period of time after the parties subsequently separated and divorced. The appeals court held that the parties' marriage to each other nullified the prior order, and remanded the case to the trial court to calculate the amount of pre-marriage child support owed.

The mother and father had a son in August 2001. They were not married to one another at the time. After the father filed a voluntary declaration of paternity, the mother obtained a court order under the same cause number for the father to pay $1,600 per month in child support in July 2002. The court further granted the mother full custody and gave reasonable visitation rights to the father. A daughter was born to the two parents in June 2003.

The mother and father married each other on December 31, 2005, and lived together for about two years. They separated on January 30, 2008. The court bifurcated the divorce matter into a proceeding on the status of the marriage and a matter on child custody and support. It issued an order of dissolution of the marriage on January 30, 2009, reserving the issues pertaining to the children. The parents shared custody of the two children by agreement since their separation.

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August 9, 2012

California Bill Would Expand Criteria for Legal Designation as Parent of a Child

838397_54880119.jpgA bill pending in the California Legislature, SB 1476, would modify the Family Code by allowing a court to designate more than two people as legal parents of a child, if the court concludes that doing so would be in the child's best interest.

State Senator Mark Leno, D-San Francisco, introduced the bill on February 24, 2012. He says that it would amend California law to match the present reality of many families. State law allows a court to designate a person other than a child's biological parent as a legal "parent," but it explicitly limits the number of parents to two. The bill, if enacted, could impact children in families with unmarried parents, step-parents, or parents in same-sex relationships. Critics, in addition to rhetoric about changing the definition of family, contend that the bill could expose children to further stress in the event of a divorce, as custody could be split three or more ways, instead of just two.

Senator Leno's inspiration for the bill, according to Debra Saunders of the North County Times, was a child known in court documents as "M.C." M.C.'s biological parents had a brief relationship but never married. M.C.'s mother, "Melissa," married her former partner "Irene" during the brief period when same-sex marriages were legal in California. M.C.'s biological father, "Jesus," provided support for the child. Melissa later sought a divorce from Irene and started a new relationship. Melissa's new boyfriend, allegedly with Melissa's "complicity," stabbed Irene. Jesus, who by then lived in Oklahoma, sought custody of M.C. Because Irene was legally married to Melissa when M.C. was born, she was the presumed second parent under California law.

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