Recently in Family Court Category

May 15, 2014

Spouses File for Divorce in Separate States, Which Court Has Jurisdiction?

usa-map-869935-m.jpgMaking the decision to divorce is no simple task. Very often the decision is made somewhat reluctantly, since couples typically must address many emotional and painful issues in order to reach that point. But once the choice is made, parties must realize that there are procedural steps to take in order to preserve and protect one's legal rights, whether it be for child support, spousal support, custody and visitation, or rights to certain marital property. The California family code governs family law matters in the San Diego area and throughout the state. If you are facing dissolution of marriage, you are encouraged to contact a family law attorney who has extensive knowledge of the local laws and procedures.

In a recent divorce case, the husband and wife were living in different states when they decided to end the marriage: California and Colorado. Both parties had significant ties to California before they were married. The husband founded a company in Mountain View in 1992 and later relocated another company he founded to Palo Alto. The wife went to Stanford University and later to the University of California at Berkeley for a law degree. She was admitted to practice law in California in 1987. The couple got married in 1999 in Carmel. But during their marriage, they lived with their three children primarily in Aspen, Colorado.

According to the facts of the case, between 2002 and 2011, the parties were registered to vote in Colorado, paid state income taxes only to Colorado, and had Colorado state driver's licenses. Despite this connection to Colorado, the parties also maintained ties to California. They own real estate in Carmel and two homes in Los Altos. The husband also maintains an airplane hangar and an apartment in Monterey. Additionally, the couple founded a company in Sunnyvale, California. Typically, the husband worked in California during the week and flew back to Aspen each weekend to be with his family.

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March 20, 2014

California Court Reviews Standard for Renewing a Domestic Violence Prevention Restraining Order

law-badge-1164850-m.jpgDomestic violence is a very serious matter. Whether you have been the victim of domestic violence or accused of the crime, there are many important issues to address. The first, as far as a victim is concerned, is one's future safety and protection from harm. There are various remedies available under California law for victims and those who have been accused. In order to determine your rights and the laws applicable to your case, it is critical that you contact an experienced family law attorney who is fully familiar with the legal procedures in and around the San Diego area.

In a recent court of appeals case, the ex-wife sought a renewal of a domestic violence restraining order that had expired. The trial court refused to grant the renewal, citing applicable law - and concluding that the facts of the case did not support such renewal. The court of appeals reversed, pointing to the lower court's erroneous legal conclusions. Here, the couple divorced in May 2010 after seven years of marriage. During the divorce proceedings, the wife filed a request for a domestic violence prevention restraining order against her soon-to-be ex-husband. In support of the request, she described a history of verbal and physical abuse by her husband. She alleged that on various occasions, he slapped her, shoved her to the ground and attempted to choke her. In 2009, the court issued the protection order for a term of three years.

In July 2012, the ex-wife sought to renew the order, claiming that she still feared her ex-husband due to the abuse during the marriage. She further described various instances where he violated the original restraining order. The trial court denied the request, concluding that it did not meet the legal standard of "a reasonable apprehension of future physical abuse." The court pointed out that not only did the abuse occur a long time ago, but also it was of a nature that would not - alone - support renewal of the order. Significantly, the court concluded that because nothing happened in three years, there was no "reasonable apprehension." The ex-wife appealed.

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February 27, 2014

Quasi-Judicial Immunity Protects Actions by Family Court Child Custody Evaluator

u-s--supreme-court-2-1038828-m.jpgChild custody cases usually present many challenging issues that have the potential to impact the entire family for years to come. Ideally, parents will agree to a parenting plan that satisfies the wishes of both parties. But many cases involve parents with vastly different outlooks on what is in the best interests of their children going forward after a divorce. When there is no agreement between the spouses, a judge in California may decide to appoint a child custody evaluator to conduct a custody evaluation and recommend a parenting plan. And while a parent is entitled to ask for an evaluation, the request may not necessarily be granted. It is also possible that parents will be expected to pay for an evaluation. Parties facing child custody disputes are encouraged to contact an experienced San Diego family law attorney who can help to navigate the process with competence and knowledge of the local laws and procedures.

According to the California court's website, a child custody evaluation involves an investigation and analysis by an expert of the health, safety, welfare, and best interests of children. In a recent court case, the parents were involved in a lengthy and bitter child custody proceeding concerning their two young children. Here, the court ordered the parties to retain the services of a child custody evaluator who would evaluate the circumstances and provide a custody recommendation to the court. Apparently, during the proceedings, the court granted the evaluator the authority to issue interim custody orders pending the court's ultimate review.

The mother brought this action against the custody evaluator alleging negligence, breach of contract and intentional infliction of emotional distress. Among other things, she claimed that the evaluator issued an interim order that restricted access to her children. The evaluator responded by asserting that the acts complained of were quasi-judicial in nature and therefore protected by the common law privilege. The mother argued that the evaluator had no jurisdiction to render an interim custody order and thus, the act was not entitled to immunity.

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February 20, 2014

Challenge to Modification of Custody Order is "Moot" Once Child Turned Eighteen

children-crossing-1319861-m.jpgWhen people think about child custody disputes, most often the concepts of legal and physical custody come to mind. While these issues are a large part of many family law disputes, parties and their attorneys must also address various jurisdictional related matters. This means that the court must have proper jurisdiction to hear a case before it may render any orders affecting the parties. In California, the Uniform Child Custody Jurisdiction and Enforcement Act (the "UCCJEA") governs questions regarding a court's jurisdiction of a child custody matter. Many of these issues are complicated and require strict attention to detail. Failure to adhere to legal requirements could result in unexpected and unwelcome consequences. To avoid this, parties facing a child custody dispute are encouraged to contact a local San Diego family law attorney with experience handling such matters.

In a recent custody case, the mother sought to modify the custody arrangement concerning her 17-year-old daughter. Since 2006, the teenager had been living with her father, who had opposed the change of custody. Although the parties did not come to an agreement while attempting to mediate a custody plan, the mediator met with the parties and received voice messages from the child's therapist detailing her on-going treatment. After conducting the evaluation, the mediator recommended that the daughter change her residence (at the end of the school year) from the father's home in Oakland to the mother's in Santa Cruz.

Three days prior to the hearing on the matter, the court notified the parties of the mediator's recommendation. The father raised a few objections, namely that they only learned of the recommendation three days before the hearing, and that the mediator never actually spoke to the child's therapist, but relied on the information in the voice messages. The court postponed the hearing a few weeks but still adopted the mediator's unchanged recommendation and modified the custody order. The father appealed the decision. The court then asked the father to prepare a brief addressing the issue of whether the appeal is "moot."

The court of appeals pointed out that an appeal is moot when an event occurs which makes it impossible for the court to grant relief to the appellant. Under the UCCJEA, the courts in California have jurisdiction over child custody matters. The statute defines "child" as a person who has not yet reached 18 years of age. This means that when a child turns 18, the court relinquishes jurisdiction. The court concluded that when the parties' daughter -- who is the subject of the lower court's custody order - reached her 18th birthday, the issue on appeal became moot.

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January 23, 2014

Appellate Review of Child Custody Order Must Be Filed in a Timely Manner

calendar-840874-m.jpgCalifornia law governs many aspects of family court proceedings. Divorcing spouses are expected to follow the various rules of procedure applicable to their case, including matters relating to child custody and visitation. Failing to adhere to important time constraints can significantly impact the outcome of your case, and consequently, your family's future. In a recent California case, the father failed to timely appeal two separate child custody orders and was ultimately precluded from contesting certain dissatisfactory court rulings. For this reason and for many other critical needs, parties who are dealing with child custody and visitation matters are strongly encouraged to seek the advice of a local San Diego family law attorney.

In the case mentioned above, in February 2008, the court ordered the mother sole legal and physical custody of the couple's two daughters, ages one and three. The order also permitted the mother to move with the children from California to Michigan, where her parents lived. According to a court evaluator's report, the mother was more likely to promote a positive relationship between the non-custodial parent and the children, than the father would be if he were awarded primary custody. The father was entitled to monthly visitation and the mother would be required to bring the children to California each summer. The February 2008 order was a final judgment in the custody dispute. The father failed to appeal the order.

In November 2008, the father attempted to modify the custody and visitation order, but to no avail. The court entered an order on February 7, 2011, denying the modification request, finding that there had been no significant change in circumstances requiring such a change. The court noted that there was no evidence supporting the father's claims that the children were subjected to (or at risk of) sexual abuse by the grandfather. The court also refused to find "parental alienation" concerning father's allegations that the mother: 1) failed to accommodate his travel delays and 2) failed to encourage the girls to speak with him on the telephone.

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December 12, 2013

California Court Applied the Wrong Standard When Ordering Payment on Child Support Arrears

the-calculator-2-1038102-m.jpgFor divorcing spouses with children, child support is one of the most important issues to resolve. It is the amount of money that a court orders one or both parents to pay each month to contribute to the support of the child, including the child's living expenses. The amount will undoubtedly impact the lifestyle of the parties involved. In California, there is a statewide formula (also known as a "guideline") for determining how much child support should be paid. If you or someone you know is confronting a divorce, it is critical to consult with a family law attorney who can guide you on the laws and procedures applicable to residents of San Diego.

In some cases, the party required to pay child support will find that they are unable to make the payments, or will fall behind in making the payments. Under California law, one must pay interest on the balance due on top of the amount that is owed. In fact, the law requires that interest charges must be applied to the amount owed and courts do not have discretion to alter those charges. In a recent case, the California Court of Appeals reviewed a family court's decision to order a monthly payment of "at least the interest owed" on the arrears.

Here, the couple divorced in 1990 and had four children. By 1999, the youngest child was 18-years-old. In 2007, a trial court ordered the husband to pay $850 a month in child support arrears. In 2012, the San Diego County Department of Child Support Services (the "Department") made a motion to increase the payment to a minimum of $10,000 per month, arguing that he owed more than $1.2 million and that the interest was accruing by an amount of $4,690 a month. The husband opposed the motion, claiming that he was unable to pay the amount of support ordered at the time of the divorce (even though records show he never moved for a downward modification). His tax returns showed that he had state and federal tax obligations totaling approximately $180,000, for which he was also making monthly payments.

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November 28, 2013

Olympic Skier Bode Miller in a Cross-Country Custody Dispute with Ex-Girlfriend

silhouettes-7-1282782-m.jpgThe ongoing child custody battle that has divided Bode Miller and ex-girlfriend Sara McKenna, both emotionally and physically, is not yet over. Miller lives in San Diego, where he and McKenna first met and started dating. According to news reports, she now lives in New York and has recently been awarded temporary custody of their nine-month-old son by a family court referee in that state. Sadly, the baby has been back and forth in each parents' homes as the courts in two separate states attempt to work out an appropriate custody arrangement that will serve the best interests of the child. While the circumstances surrounding this widely publicized dispute are not necessarily the norm, child custody cases can evoke many intense emotions and positions by both parents. If you find yourself facing a child custody matter, it is critical that you contact an experienced San Diego family law attorney who can help you to navigate the sometimes-complicated, emotional process.

McKenna and Miller dated for a short while and although their relationship did not last, Miller did become pregnant. A former United States Marine, McKenna left California for New York to attend Columbia University with the help of the GI Bill. She was pregnant at the time, but claimed that Miller wanted nothing to do with the baby when he learned that she was pregnant. Miller initiated child custody proceedings in a San Diego family court. Once McKenna was in New York, Miller complained to a New York referee that she "absconded" with his baby by moving away. The court granted his request that the case be assigned back to California.

A California court then granted Miller custody of the baby boy. McKenna appealed. Just this month, a five-judge appeals panel in New York said that McKenna's basic rights had been violated and that jurisdiction belongs in New York because the baby was a resident of the state. This decision effectively sent the case back to the family court referee who awarded temporary custody of the baby to McKenna, until the next custody hearing that is scheduled for December 9 in New York.

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November 21, 2013

Parents Suing San Diego County for Alleged Loss of Custody over Medical Marijuana Use

pedestrian-zone-sign-1422766-m.jpgAccording to the Courthouse News Service in San Diego, a Gulf War veteran and his family are suing the county of San Diego and assorted employees for taking their two children away from them for a year. The city claims that they received a tip that the parents were running an illegal daycare center at the home and smoking marijuana around the children. Although authorities discovered that there was no illegal daycare center, they did find marijuana at the home. In his defense, the war veteran argues that he received a medical marijuana recommendation from a doctor to treat migraine headaches that resulted from exposure to chemical weapons during the war.

Although the only "hazard" the investigators found at the home was the marijuana, authorities returned three days later with instructions to take the children from the home and to bring them to an emergency shelter for allegedly abused and neglected children in San Diego County. Interestingly enough, according to the complaint, neither parent was ever criminally prosecuted for the possession and/or use of the marijuana. Under California law, there are procedures to follow when someone suspects a child is subject to abuse or neglect. When someone makes a report about the safety of a child, the police or a social worker must investigate. But taking children away from their parents, for any length of time, is a serious matter and can have lasting effects on the entire family. Parents who are facing a child custody matter of any sort are encouraged to contact a local, experienced family law attorney who can help to protect and preserve their rights.

In this case, the parents allege that the city took their children away without conducting a proper investigation into the facts of the case. The complaint alleges that the California Welfare Code obligates social workers to err on the side of keeping children at home with their parents so long as it is safe to do so. At some point during the proceedings, the juvenile court made the children "wards of the court" and placed them in a foster home.

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May 23, 2013

Reduction of Court Services in California Could Pose Risks for Victims of Domestic Violence

1330873_courthouse.jpgVictims of domestic violence in San Diego could face a situation that may be even more worrisome than threats from an abusive family member - that is, the inability to receive the necessary and immediate protection via the court system. According to a recent article appearing in The Sacramento Bee, the possibility of reducing funding to state courts means that the services will be cut back or eliminated. For victims of domestic violence, this creates an unthinkable dilemma: what if the courts, due to limited hours or possibly even closures, are unable to process a request for a restraining order in a timely manner, to ensure their immediate safety and protection? Domestic violence is a serious offense, one that requires prompt attention. If you or someone you know is involved in a domestic violence situation, it is important to contact an experienced family law attorney as soon as possible.

In California, domestic violence involves abuse or threats of abuse where the people involved have been in an intimate relationship, including those who are married, domestic partners, are dating or dated in the past, or live or lived together, or have a child together. Courts will also consider the abuse or related threats to be domestic violence if the abuser and the abused person are closely related by blood or by marriage.

The abuse can be manifested in many ways, such as: physically hurting or attempting to hurt someone, either with intent or in a reckless manner; sexual assault; threats of harm that make someone reasonably afraid that they will be seriously injured; or such menacing behavior as harassing, stalking, threatening, or hitting someone; possibly even disturbing someone's peace; or destroying another's personal property. It is also important to realize that abuse extends beyond physical actions -- it includes verbal, emotional, or psychological tactics as well.

Victims of such abuse may petition a local court for a domestic violence restraining order. This is a court order that helps to protect people from abuse or threats of abuse from someone they have a close relationship with. Victims who go to court to find some protection and relief need to know they will receive a rapid response with meaningful assistance. According to the article referenced above, it was typical for a court to attempt to process a temporary restraining order on the same day it was filed. Sometimes the abused person in a potentially explosive relationship cannot wait until the next day for help. Data indicates that victims are at a greater risk of being stalked, assaulted or even killed in the weeks immediately after moving out of the home or filing for separation or divorce.

A restraining order can require that the abuser stay away from you and your children and possibly other relatives, as well as require the person to comply with child support payments and to follow any child custody and visitation orders. It can be a life-saving tool for many people. Hopefully, the lawmakers will consider the vital needs of victims who rely on the courts for practical assistance.

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April 11, 2013

Kris Humphries Fails to Show Up at Court Settlement Conference with Kim Kardashian

869848_roads_sign.jpgGoing through a divorce has been described as one of the most difficult times in a person's life. In order to lessen the stress and expense, divorcing couples in San Diego may request that the court order a settlement conference with the intention of resolving any outstanding matters in dispute. By doing so, the parties may be able to avoid taking their case to trial. Under California Law, the court also has the authority to order one or more mandatory conferences on its own motion, if doing so would serve to move the case along more efficiently. Only an experienced San Diego Family Law attorney can help you to navigate a process steeped in local rules and procedures.

In what may not be such a big surprise, Kris Humphries and Kim Kardashian are encountering another little hurdle in their very public divorce proceeding. According to a recent news article, Mr. Humphries failed to show up at a recent mandatory settlement hearing with a Superior Court judge in Los Angeles. It has been reported that the judge was not happy about Humphries' absence at the conference and scheduled another hearing to determine whether he should be penalized for not appearing. One reporter said the judge believed Humphries was "mocking" the entire court system by failing to appear. In addition to that hearing, the court ordered a new date for the settlement discussions in the hopes that this time Humphries will attend. The trial is still scheduled for May 6.

The Superior Court in San Diego provides a great deal of information on its website for parties who are pursuing a settlement conference. At this hearing, a judge -- or perhaps a volunteer attorney -- helps the parties by reviewing the case and evaluating its strengths and weaknesses. The ultimate purpose is to encourage the parties to negotiate a settlement of the dispute. At this point, the judge (or volunteer attorney) would not have the authority to make any decisions or orders in the case. Often, a mandatory settlement conference is held close to the parties' trial date, giving them one last opportunity to resolve their differences before spending the time and money to endure a trial.

Before the parties attend the settlement conference, they are expected to exchange a "good faith" settlement demand and offer. The attorneys representing the parties must be fully familiar with the case and have complete authority to negotiate and settle the matter.

The Humphries/Kardashian case is interesting because he wants the marriage annulled while she is seeking a traditional divorce, despite the fact that they were married for only 72 days. Humphries has alleged that the marriage was based on fraud, claiming that Kardashian only married him because of her reality show, "Keeping up With The Kardashians".

While the Humphries/Kardashian divorce proceeding has been so extensively reported on, with paparazzi and reporters cramming the courthouse, many of the issues they are facing occur in a great deal of divorce cases. A divorce proceeding and settlement conference can be a relatively smooth process with the help of a dedicated and experienced attorney

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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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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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