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Gold- some case law, opinions, and information directly from family law cases in CA

Gold- some case law, opinions, and information directly from family law cases in CA

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Published by Destiny Ann
These are just some bits of case information I have come across and done a little copy and pasting to make notes for myself. I was once very confused and not very confident in drafting a Memorandum of Points and Authorities Re: Child Custody and Visitation. I am becoming more confident with the more I find that relates to what I am going through. if these specific notes don't fit for you, email or message me and I might be able to find something relevant to your matter, or at least point you in the right direction! Enjoy!
These are just some bits of case information I have come across and done a little copy and pasting to make notes for myself. I was once very confused and not very confident in drafting a Memorandum of Points and Authorities Re: Child Custody and Visitation. I am becoming more confident with the more I find that relates to what I am going through. if these specific notes don't fit for you, email or message me and I might be able to find something relevant to your matter, or at least point you in the right direction! Enjoy!

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Published by: Destiny Ann on Sep 20, 2012
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01/19/2013

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Peyton v. Kringlie - Unpublished opinion of District 5 (Filed September 7, 2011)A finding based on suspicion or a hunch is not substantial evidence that supports a ruling that a child should have only therapeutic visitation with a parent.Sarah is the mother of Austin, 11 and Adrian, 9. Andrew is Austin
s father and Aaron is Adrian
s father. From the time the children were born until 2008, they livedwith their mother and grandmother, Rebecca.In February 2008, the trial court ordered an immediate change of custody of Austin and Adrian to Andrew
s father based upon a finding that Sarah and her mother lived in filthy unhealthy, dangerous living conditions and that they neglected thechildren
s upbringing and education.In November 2008, the parties stipulated to an order for joint legal custody andagreed the children would live primarily with their fathers. The agreement provided gradually increasing parenting time for Sarah with the expectation that theparents would share joint physical custody equally within 6 to 12 months. Pending modification, Sarah was given supervised visitation on each Saturday or Sunday and for one or two days during the week after school. In 2009, Sarah
s visitation became unsupervised and included one weekly overnight.In 2009, the court appointed parenting coordinator reported Sarah
s increasing timeshare had gone steadily and smoothly. Austin
s father reported that he acted outat home and school at the commencement of the unsupervised day visits. Overnights on the other hand were no problem.Based upon a number of very weak indicators, the coordinator said she
suspected
the children were having unauthorized contact with their grandmother and speculated that Sarah may have facilitated that contact. She offered the opinion that
Mother, grandmother, and children are capable of executing such a fraud
and recommended that Rebecca submit herself to the jurisdiction of the court for the purposeof a psychological evaluation.In August 2009, Austin
s father and the attorney appointed to represent the children filed an OSC seeking to require Sarah
s visitation to be supervised. They alleged Sarah violated the terms of the court
s order by allowing contact between the children and Rebecca and asserted they were told to lie about it.At a contested hearing in September 2009 the coordinator was the only witness. She admitted she did not know where the coaching came from although she suspectedit was Rebecca. The coordinator explained that she had no way of knowing whether Sarah ever coached the children, but in spite of this, offered the conclusion
Sarah failed to protect the children by not instructing them that they had to tell the truth.&rdquo. Nevertheless, the parenting coordinator recommended supervised visitation with Sarah for six to eight hours, three or four times per week.The trial court concluded Sarah either directed the children to lie about contacts with their grandmother or acquiesced in her mother
s instructions to them to lie about it. The court relied solely on testimony that Rebecca was seen at the apartment complex where Sarah lived and that the children
s reactions to inquiries
about these things
was suggestive.The trial court found that exposing the children to further
inculcation of withholding information from their fathers or being deceitful about what is going on when they
re in the custody of their mother is very damaging.&rdquo. The trial court granted full legal and physical custody of the children to their fathers and limited Sarah
s visitation to therapeutic reunification once a week. Mother appealed. REVERSED AND REMANDED WITH INSTRUCTIONS TO ASSIGN THE MATTER TO A DIFFERENT JUDGE.It was an abuse of discretion to limit Sarah to therapeutic visitationIt is the policy of this state to assure that, when making any orders regardingchild custody or visitation, the court
s primary concern is the child
s health, safety and welfare. (FC § 3020 (a).. State policy also directs the court to assure that children have frequent and continuing contact with both parents and to encourage parents to share the rights and responsibilities of child rearing. (FC § 3020 (b).. Preservation of parental relationships is in the best interest of the childand the parent. (Camacho v. Camacho (1985) 173 Cal.App.3d 214, 218-219.)Moreover, the relationship between parent and child is so basic to the human equation that it is recognized as a fundamental right to be protected by all societ
 
y. Accordingly, interference with that right is justified only by compelling necessity. (Hoversten v. Superior Court (1999) 74 Cal.App.4th 636, 641.). Thus, anaffirmative showing of harm or likely harm to the child is necessary in order torestrict parental visitation. (Irmo Birdsall (1988) 197 Cal.App.3d 1024, 1030.)The trial court
s justification for modifying the 2008 custody and visitation order was the finding that Sarah violated the court
s order by permitting her mother Rebecca to have contact with the children. But substantial evidence does not support this essential finding since there was no solid evidence that Rebecca had contact with the children. Basing a finding on a suspicion or hunch is not proof.
Further, the court
s order is dramatically inconsistent with the coordinator
s recommendations that Sarah have supervised visitation with Sarah for six to eight hours, three or four times per week. She also said the fathers were not mature enough to decide on behalf of their sons the nature and extent of the contact they should have with their mother but nevertheless, the court left the decision as toadditional visitation in their hands.The trial judge
s apparent bias warrants reassignment
[T]he actions of a judge must not only be impartial, but they must be seen as impartial by a reasonable person.&rdquo. (Irmo Tharp (2010) 188 Cal.App.4th 1295, 1328.)Here, the CA said the trial judge appeared predisposed to rule against Sarah. The panel cited a comment by the court that accused Sarah of engaging in a
patternof grift and deception
and expressed doubt about her capacity to change. The CA said there was no evidence to support this disparaging description of Sarah.This, the CA concluded, would lead a reasonable person to believe the judge wasinclined to rule against Sarah without regard to the evidence and to conclude that the judge was biased against her. The CA also concluded that the severity ofthe restriction on Sarah
s visitation under these circumstances suggested unfairness.
The appearance of fairness will be achieved only if this case is reassigned to another judicial officer.
rmo Pano - Unpublished opinion of District 1, Division 4 (Filed September 29, 2011)Courts must fashion custody and visitation orders to promote: (1) the child
s health, safety and welfare; and (2) frequent and continuing contact with both parents.Husband and Wife married in 2000 and separated in 2004. Their daughter, V., wasborn in October 2001. Father did not have any unsupervised contact with V. from2004 through the time of trial.The parties agreed to a court order appointing a custody evaluation pursuant toFC § 3111. The custody evaluation was submitted in April 2009. Mother
s trial briefon the bifurcated custody and visitation issues requested an order for supervised visitation for Father.At trial the custody evaluator focused on two concerns; viz., (1) whether it waslikely the child
s paternal grandfather molested his nieces 30 years ago, and (2)whether it was likely Father would molest V. The custody evaluator concluded that grandfather had molested underage girls on multiple occasions. On the other hand, she concluded that father was not inclined to molest V.The custody evaluator said Mother
s fear that Father might molest V. was exaggerated and that Mother showed some distortion of reality along with an hysterical type of presentation of reality. The evaluator also thought that the Father-daughter relationship was strained because of Mother
s attitude and because he was permitted only limited access. When the custody evaluator interviewed V. in father
s home, she was quite positive, playing and asking her dad questions.The custody evaluator said both parents were defensive and that Father had problems with impulse control, possessed limited social skills and lacked awareness of how he upset others. A visitation supervisor testified that V. was happy and laughing during visits with Father and said she never witnessed any untoward behavior by Father.
 
The CA characterized Mother
s various harsh allegations as
unproductive.&rdquo. Forexample she said,
Father cannot be trusted; his word is worthless. Father is more than a cad and a bounder, he is a con and a thief. . . . [T]he Court should never allow Father the opportunity to complete a pilfering of this child or anything else that is a fruit of the marriage.&rdquo. She also said that father engaged in cruelty to animals, frequented internet pornography sites, hired prostitutes, was excessively absent from the family home prior to separation, and treatedher poorly in a variety of ways. The court-appointed custody evaluator discredited Mother
s most serious allegation that he molested a female family member when he was much younger.The trial court awarded sole physical and legal custody of V. to Mother, with visitation rights to Father. The general orders sharply restricted Father
s contactwith V. such as by prohibiting him from taking V outside five counties and requiring him to abide by Mother
s decisions about V even if he believed they violatedthe court
s orders.Father was directed to secure joint counseling with V. for the purpose of securing a written recommendation about when Father was ready for unsupervised visits.A psychologist was appointed to report to the court on whether there was any substantial basis to believe Father would physically or sexually abuse V if he were permitted to have unsupervised visits with her.The trial court fashioned a parenting plan that began with professionally supervised visits but after eight weeks entered a second phase of unsupervised visitseach Sunday afternoon followed by two hours of supervised visitation. Phase three permitted eight weeks of supervised visits on Sunday afternoons with Father and his mother. Phase four commenced when the court was satisfied Father was readyfor unsupervised visits. These visits were to be on alternate weekends from Friday at 6:00 p.m. to Sunday at 6:00 p.m.Mother appealed. AFFIRMEDTwo vital public policies must inform child custody and visitation orders. The first
primary concern
is the child
s health, safety, and welfare and in this regard,the
perpetration of child abuse or domestic violence in a household where a childresides is detrimental to the child.&rdquo. (FC § 3020 (a).. The second concern is that the parenting plan provide for
frequent and continuing contact with both parents
unless contact would not be in a child
s best interest because of a historyof abuse by one parent, as detailed in FC § 3011.Here, the CA noted that Mother resorted to
unconstructive hyperbole and judgmental, conclusory statements premised on the assumption that the trial court was obliged to credit all her accusations and statements as true, all of the time
.&rdquo. Mother speculated that unsupervised visits would place V.
at great risk
in light of the
clear and present danger that the Father will act selfishly, dishonorably, and in violation of Court Orders.
. Her contention was rejected, as was her prediction that Father would violate court orders. The trial court noted Father followed the orders by prohibiting contact between V. and grandfather and by abiding by the court
s orders relating to his professionally supervised visits.The CA cited other examples of Mother
s exaggerated arguments and rejected them because they were contradicted by substantial evidence to the contrary. The CA concluded
the trial court did an admirable job of crafting a custody and visitationplan that respects the twin public policies set forth above, advances the best interest of V., and affords mother substantial control over the child.
¶ The recordamply upholds the court
s thoughtful exercise of discretion in fashioning visitation and custody orders that protect the safety and well-being of V.
Family Code Section 3118 EvaluationThe CA rejected Mother
s argument a FC § 3118(a) evaluation should have been orderedby the trial court because there was a serious allegation of child sexual abuse. A
serious allegation of child sexual abuse
is an allegation
based in whole or inpart on statements made by the child.&rdquo. First, for a mandatory evaluation,there must be some report by the child to a person specified in section 3118 (a), or substantial independent corroboration, namely written reports from one or more of the listed relevant agencies listed in section 3011 (b).
Here, the allegation that Father molested a cousin when she was a child and he wa

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