Grandparent’s Suffer – Grandson Suffers

MY SON CALLS HIS GRANDMA MOM. HE DID NOT KNOW WHO HIS MOM WAS AT THIS TIME 
AT THIS TIME HE LIVED FULL TIME WITH DAD. LOOK AT THE VIDEO BELOW AND LISTEN!

GRANDPARENT CASE LAW 

Do Grandparents Have Visitation Rights? If there is an Established Relationship then Yes

Third “PRESUMED PARENT” Family Code 7612(C) – Requires Established Relationship Required

Cal State Bar PDF to read about Three Parent Law –
The State Bar of California family law news issue4 2017 vol. 39, no. 4.pdf

Distinguishing Request for Custody from Request for Visitation

Troxel v. Granville, 530 U.S. 57 (2000) – Grandparents – 14th Amendment

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

9.32 Particular Rights – Fourteenth Amendment – Interference with Parent / Child Relationship

Child’s Best Interest in Custody Cases

When is a Joinder in a Family Law Case Appropriate? – Reason for Joinder

Joinder In Family Law Cases – CRC Rule 5.24

GrandParents Rights To Visit
Family Law Packet OC Resource Center
Family Law Packet SB Resource Center

Motion to vacate an adverse judgment

Mandatory Joinder vs Permissive Joinder – Compulsory vs Dismissive Joinder

When is a Joinder in a Family Law Case Appropriate?

Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848

Punsly v. Ho (2001) 87 Cal.App.4th 1099

Zauseta v. Zauseta (2002) 102 Cal.App.4th 1242

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

Ian J. v. Peter M

Read some Healthy Christian Quotes Below!

Those Who Harm Children, What Does the Bible Say?

The Steadfast and Diligent. What Does the Bible Say?

Good Words of Wisdom for Christians and God Fearing People

Blurred Lines of Right and Wrong: Hold Fast To Good; Abstain From Evil

10 Bible Verses on Clarity of Vision

The Virtuous Woman Affirmation

The Honorable Man Affirmation

What Makes God Angry?

Historically, when parents went through a divorce, child custody was thought of as a sole responsibility. It wasn’t expected that parents could share the role (likely because of the emotional nature of divorce). As a result, the courts adhered to “the rule of one”—which is the idea that child custody must go to one parent in divorce while the other parent is a visitor.1 The parent who often recieved custody was the mother, thanks to something called the tender year’s doctrine. Established in the 1800s, this family law principle indicated that mothers were the most capable, compassionate parents.123

But as our understanding of care and parenthood has evolved, so too have custody agreements. Society has historically devalued fathers as parents—which has impacted how custody decisions are made. Fathers pursuing custody may have to overcome popular engrained ideas that they lack parenting qualities that courts implicitly or explicitly assume the mother has. While this is an additional burden, it isn’t insurmountable.

Any parent seeking custody must meet the same criteria—here’s what you need to know.

Types of Custody

Over the years, types of custody agreements have evolved alongside parenting responsibilities. Broadly, there are two categories of custody awards, either of which can be held jointly or solely between the parents: physical and legal.4 “Legal custody” basically means that the parent has all legal right over parenting responsibilities. They can choose what religion the child will follow, for example, or give permission for a surgery.5 Conversely, “physical custody” looks at parenting time. This might mean that the child resides with that parent, or that the child legally needs to spend two nights a week with that parent, for example.6

These arrangements vary between divorced parents. For example, some states split up parenting responsibilities, giving one parent jurisdiction over education and health while the other gets jurisdiction over religion. Or, the court can decide that everything must be a joint decision between both parents. The same goes for parenting time awards. “Physical custody” does not necessarily mean that the child resides with one parent full time and never sees the other.

Sole custody is the historic “rule of one,” often awarded today when a parent is deemed unfit to raise their child. Unfitness is a high bar to meet, and the parent seeking sole custody must prove unfitness in order for sole custody to be granted. If the court decides sole custody, it will often grant the other parent visitation rights. This gives the other parent legal right to visit with the child.7

A joint custody arrangement is most common. This is when the parents jointly share physical and/or legal custody and come to an agreement on when the child will visit each parent and work together on major decisions.5

In most cases, custody decisions are made on a continuum. For instance, both parents may have the child live with them on alternating weeks (joint physical custody), whereas one parent may have decision-making authority regarding the child’s medical care (sole legal custody).1

While the standards vary from state to state, most courts follow the “best interests of the child” standard when tasked with custody proceedings. Under this principle, there are several factors that courts consider, among them: the wishes of the child’s parents; the wishes of the child; the interaction and interrelationship of the child with their parents; the child’s interaction and interrelationship with siblings, and any other individual who may significantly affect the child’s best interests; the child’s adjustment to their home, school, and community; and the mental and physical health of everyone.8

How Fathers Can Build a Custody Case

By Zshornelle Chelsea Daniel

It is fully possible for fathers to get sole custody of their children. In order to do so, first and foremost they must establish the unfitness of the mother. The court must also feel that the father meets the “best interest standard” of the child. That is to say—is granting the father full custody what is best for the child?

In addition, there are aspects of a custody case where fathers may have an additional burden to prove that mothers do not. These include paternity, the primary caretaker role, and home environment quality.

Paternity

There are two ways to determine paternity: biologically or legally. Under the Uniform Parentage Act, a man is an “alleged father” if they have not established biological paternity or achieved presumed fatherhood.9 The law often distinguishes between the legal and biological recognition of paternity: “Where such births result from sexual intercourse between consenting adults, genetic ties almost always themselves determine legal motherhood, but often only help determine legal fatherhood.”6 Legal parentage is required to receive the constitutional rights of a father.

In cases where the father is not married to the mother, but another man is, courts have ruled that fatherhood may be determined by who the mother is married to, rather than biology.10 If a father is not married to the mother, or if he does not sign an acknowledgment of paternity, he cannot be granted custody or visitation rights.6

Primary Caregiver Role

A primary caregiver is a person who consistently is responsible for the housing, health, and safety of another.11 In custody proceedings, courts assume the primary caretaker is experienced and knowledgeable regarding the child’s educational needs, medical needs, and more. As family dynamics shift from stay-at-home mothers and working fathers, there may be a presumption on who mostly handles the roles of primary caretaker. Fathers must show their engagement in caring for their child academically, medically, and in other critical areas.

In families where the mother does stay home or work less, there is a preconceived notion that children’s bond with the stay-at-home parent is stronger than their bond with the working parent. As part of making decisions within the child’s best interests, a change in primary caregiver is typically considered as causing at least some distress to the child.12

Because of this, courts are hesitant to change a child’s primary care provider unless it is in the child’s best interest.12 The non-primary caretaker parent should offer some other evidence counterbalancing this finding, such as the child’s aptitude to adjust to new environments.

The mere fact that a parent balances work and family needs should not be determinative in decisions regarding their aptitude to connect with their children. Therefore, it is necessary to examine the working-parent and child relationship on an individual basis. Doing so would provide that parent with the opportunity to demonstrate the strength of their relationship during a custodial proceeding.

Mothers, whether they work or not, statistically tend to have more responsibility for parenting aspects such as attending parent-teacher conferences, school plays, doctor visits, playing at parks, helping with homework, and other activities. In fact, studies have found that 48% of fathers in the U.S. participated in their children’s school activities once a year or less.13

A father seeking custody may need to overcome this and demonstrate to the court that they participate in all aspects of parenting, not just financially. Courts appear to want the primary caretaker to be an experienced and knowledgeable parent who knows how the child learns best, their major health needs, etc.8 Demonstrating involvement in these crucial aspects of care is important.

Quality of the Home Environment

The quality of the home environment is another element that may further burden fathers due to beliefs about their parenting when compared with mothers.12

When looking at this element, the courts consider things like intellectual, emotional, and cultural factors. Courts weigh the quality of the home environment for both parents, however, when neither home is harmful in any way, courts will also take into account which home is simply better.12 Does one home sit in a better school district? Or does it provide more opportunities for the child’s growth and development? Sometimes, the determination of “better” is as simple as that.

In addition, there may be incorrect assumptions about the father’s capability to meet the child’s emotional needs. Thus, a father should demonstrate his understanding of his child’s emotional needs. The emotional wellness of a child is an important factor in determining where a child should live.

A Word From Verywell

There is no denying that society does not value fathers enough, but the fact is that fathers can be just as important as any other parent in a child’s development. Studies even show that fatherless children live an average of four years less.14 In addition, children who feel close to their father are twice as likely to enroll in college or find stable employment after high school, 75% less likely to have a teen pregnancy, 80% less likely to end up in jail, and half as likely to have multiple depression symptoms.14

When it comes to fighting for your child, these studies, as well as many others, can speak to the importance of the fight. Though it may be more difficult for father’s to build a custody case, it is not impossible. Consider the key elements of establishing fitness and work with a qualified legal team to establish them for the courts.

How to Win Child Custody for Fathers Who Deserve More Parenting Time

There are proven ways to help fathers win equal or primary child custody

The question is how to win child custody for fathers. The answer is by focusing on the child’s or children’s best interest and showing the court why you, the father, are equally fit or better fit for parenting.

Before we dive further into this answer, we will explore the concept of “winning.”

We know what fathers mean when they talk about “winning” child custody

When a father thinks about “winning” a child custody case, he already makes a mistake of how he looks at child custody in California.

Good fathers mean getting a child custody order they believe to be in the child’s best interest. Poorly intentioned fathers mean using the child as leverage for child support or getting some foolish revenge against the mother. That is exactly why the word “winning” is incorrect. A victory in a child custody case can mean completely different things to different fathers.

We tailor the “winning” child custody concept toward a child’s best interest

We will refer to the concept of winning but we will tailor it so you understand what it may mean for a good father. We will focus on a father winning equal custody or primary custody.

Ultimately, however, I want you to get that word out of your head when it comes to custody and instead rephrase it with something like this: “how can I get a court order consistent with my child’s [or children’s] best interest?”

How to win “equal” child custody and parenting time for fathers

Child custody includes legal custody and physical custody. Physical custody is the label attached to the amount of parenting time. The amount of parenting time is what matters, not the label.

Winning joint legal custody is common

Courts usually grant joint legal custody to both parents unless the court believes one parent is not fit to share in the decision-making process concerning the child’s health, safety or education. Examples of parents losing legal custody include those situations that involve documented domestic violence, child abuse, serious substance abuse, serious child neglect, etc.

Read our guide on how a mother can lose custody of her child

Winning joint physical custody for fathers requires courage and a child focused strategy

For a father to win joint physical custody and equal parenting time requires the father to show the court such a schedule is in the child’s best interest.

Fathers mistakenly believe they have a higher burden than the mother does. They sometimes believe the court will award primary custody to the mother unless the father can show the court why it should do something different. That is not California law.

Both the father and the mother start in the same place unless some of the issues we discussed above apply. Absent those, neither parent really has a burden of proof to overcome anything.

Both parents should prepare to advocate their position to the court and show the court why the parenting plan they propose is in the child’s best interest.

The four ways fathers can win joint physical custody and equal parenting time

Here are some facts a father can show to help him obtain equal parenting time.

1. The father has the same or similar amount of time to care for the child,

2. The father has the same or similar parenting skills as the mother,

3. The father is able to dedicate the same or similar amount of time to the child’s education and extracurricular activities, and/or

4. Neither the mother nor the father have a history that would evidence one or both of them are a danger to the child.

Did you notice the common theme? The theme is there is nothing consistent with the child’s best interest that gives the mother a distinct advantage over parenting and therefore parenting time.

Status quo during the relationship is not the most important factor

Some mother argue they were the primary custodial parent during the marriage and that is how it should stay. That is not what California family law states.

While stability and continuity is a factor when a court determines parenting time, is not the only factor or even the most important factor.

Our laws recognize fathers and mothers may have had a different arrangement during the relationship and neither is bound for the rest of the child’s minority to that arrangement, as if it was some kind of contract.

It is normal for a parent who was the primary custodial parent to remain the primary custodial parent in the short term after separation. However, if the father is capable of caring for the child on an equal parenting schedule, there is no reason for that temporary arrangement to become a permanent one.

How to win primary custody for fathers

I use the word “primary” instead of “sole” custody because parents sometimes think sole custody means 100% parenting time to one parent and therefore 0% parenting time to the other parent. That is not what sole physical custody means in family law. Regardless, we will use the word primary because most people understand “primary custody” better.

Read our guide on how to get full custody as a father

Does the father have to show a significant change of circumstances to win primary custody?

If the father has equal parenting time now because of a court order and wants to win primary custody, he will likely need to show a significant change of circumstances since the last court order that awarded equal parenting time. That however depends on how much primary custody the father wants. Let us use percentages as an example.

If the father has 50% parenting time now and wants to increase his parenting time to 60%, that may not be significant enough to require an actual showing of a significant change of circumstances. In that situation, the father may only need to show the additional parenting time is in the child’s best interest.

However, if the father wants to go to 80% parenting time, that is a significant jump and the father will need to show a significant change in circumstances from the last court order.

All of this assumes the last court order is a judgment or post judgment final child custody order. Temporary orders while the divorce or parentage case is pending require a “best interest” showing and without the need to show a significant change of circumstances.

What does significant change of circumstances mean?

Fathers often ask what a significant change in circumstances actually means. There is no specific definition for it. However, an easy way to think about it is this.

1. Something significant that occurred after the last court order,
2. That significant event justifies coming to court and telling the court the situation today is very different from the situation that existed when the last court order went into effect, and
3. The court should modify custody or parenting time as a result.

That may be an event that provides one parent a greater ability to spend time with the child, that significantly limits a parent’s ability to spend time with the child, an action by a parent that significantly affects the child’s health, safety, education or general welfare, etc.

Custody terms and laws are written to give the judge significant discretion

By now, you may realize words like “best interest,” “significant change of circumstances,” and health, safety, education and general welfare are broad. Fathers who want to win a child custody battle must have the facts that support their position and an attorney who can advocate it well.

They therefore need a great attorney to represent them.

When a court has broad discretion and the issues before the court are not black or white, your choice of advocate matters more than you may realize.

How Can a Father Get Full Custody?

What Is the Standard for a Father’s Custody Rights?

In Texas, custody and visitation rights are decided based on what is in the best interests of the child. Accordingly, the court will consider the following factors in allowing custody privileges to a father:

1. Your Mental, Emotional, and Physical Health. As the child’s father, you need to be in sufficient physical, mental, and emotional condition to support your child. Substance abuse issues are evidence that you are not adequately fit to care for your child. So are prior criminal convictions and evidence of abuse, neglect, or abandonment of your spouse or child.
2. Your Willingness to Be an Involved Parent Who Puts Your Child’s Needs First. A father who can demonstrate that he spent meaningful time with his child has a better chance of gaining custody. The same goes for evidence that you put your child’s needs ahead of yours. You must show that you’re willing and able to have a relationship with your child that serves their best interests.
3. The Amount of Time Your Child Currently Spends With You. Courts will want your child’s life to suffer as little disruption as possible. So judges will prefer that your custody schedule matches the amount of time you currently spend with your child currently.

What You Need to Get Full Custody

When it comes to the question of how can a father get full custody, the help of an experienced child custody attorney is crucial. They can guide you through the process and arrange for everything you need to prove your case. This includes gathering expert witnesses and documentation of child abuse or abandonment by your child’s mother. You will also need evidence that your child mother’s behavior is having a detrimental effect on your child.

Are There Alternatives to Full Custody?

Texas courts are becoming more and more aware of how important it is for children to have their fathers involved in their lives. But the reality is that Texas courts are reluctant to take away any parent’s right to visit their child — especially the child’s mother.

The court may more easily agree to a custody or visitation arrangement where both parents share parental responsibilities. If you have concerns about your child’s mother’s ability to care adequately for your child, you could seek the following alternatives:

1. Limited or Supervised Visitation. You could agree to restrict your child’s mother’s overnight visits if she provides an unsafe environment for your child. This requires proof that your child’s mother abuses drugs, engages in criminal activity, or otherwise neglects your child. You could also arrange for your child’s mother’s visitation to be supervised by a third party.
2. Unilateral Decision-making Authority. You could also ask the judge to grant you decision-making authority. This requires proving that your child’s mother is unable to make decisions in the best interest of your child.
3. Negotiated Custody Plan. You could work with your ex to work out a parenting plan that gives you nearly complete custody. The agreement should allow your child’s mother to have some visitation rights. The agreement should also include a provision that allows your child’s mother to modify their custody rights in the future. cited alsandorlaw

You want to know how to get full custody as a father?

Family Code 3040 and how it helps fathers get full custody

The first part of Family Code 3040 reads:

(a) Custody should be granted in the following order of preference according to the best interest of the child as provided in Sections 3011 and 3020:

(1) To both parents jointly pursuant to Chapter 4 (commencing with Section 3080) or to either parent. In making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent, consistent with Sections 3011 and 3020, and shall not prefer a parent as custodian because of that parent’s sex. The court, in its discretion, may require the parents to submit to the court a plan for the implementation of the custody order…

The law specifically forbids bias. The reason a father who wants to get full custody needs to let this issue go is it does nothing to help him with the ultimate goal. It either becomes a built-in excuse, a distraction or both. None of those help a dad who wants to get full custody of his child or children put on a persuasive case consistent with the facts and law. If you mentally defeat yourself before you step into a courtroom, you are likely going to lose when you get there.

How to get full custody as a father requires a dad to first know what full custody means

There is a big difference between joint and full custody (also called sole custody).

Joint custody can be shy of equal parenting time (although not by much) or equal parenting time. Sole or full custody means the father wants the much larger parenting time (typically 65% or more).

The strategy changes between joint versus full custody because, with full custody requests, family law judges will want to know why the father believes he is better suited to primarily care for the child.

In other words, the judge will want to know why full custody to the father is in the child or children’s best interest.

With joint custody requests, the focus is more on why it is in that best interest to share parenting time.

Is one much harder to get?

That depends on the facts. If the mother and father are both good parents, neither is a danger to the child and both have the reasonable time to dedicate to their parenting, joint custody makes more sense.

What if the mother refuses to co-parent, disparages the father to the child or children, makes false allegations of abuse or neglect or is alienating the children? Then the father should seek full custody.

What we do at our family law firm is evaluate the facts with the law and, in collaboration with the father we represent, decide together whether it makes sense to ask for joint or full custody.

Now, let us look at some specific considerations.

When evaluating how to get full custody as a father, we need to look at the “time” you have for parenting

The traditional American marriage still has a husband and father who works full-time and a wife and mother who either works less hours, earns less pay and/or does not work at all. While this is less common today compared to decades ago, it still pervades the majority of divorce cases we see.

For fathers who have full-time jobs and young children who are not yet in school, the practical problem and fear of not getting quality time with the children is an issue near and dear to the dad’s heart.

Thus, it is important that fathers with full-time or heavy work schedules obtain a custody and visitation schedule that maximizes the quality time with their children.

What is quality time for fathers who want custody?

Quality time includes days that the father does not work such as weekends as well as evenings during the week. Vacation and holiday time is a critical part of a working father’s schedule. Depending on the children’s ages, frequent and regular contact (even in short bursts of time) may be a must to continue the bonding process and ensure the child does not become distant from the father.

This is where parenting guidelines help. Here are three of them:

• Orange County, CA Parenting Guidelines Download Here

• Los Angeles, CA Parenting Guidelines Download Here

• San Diego, CA Parenting Guidelines Download Here

What about custody for fathers when children are bonded with both parents?

In situations where both the father and mother work full-time and the children are equally bonded with both parents, no special preference should be given to the mother in the custody schedule.

If two parents have very similar work schedules and it is otherwise in the children’s best interest to spend equal time with the parents, any day care or other childcare arrangements should be equally made between the parents so that both parents enjoy equal time with their children when they’re not working.

What about custody for fathers with heavy travel schedules?

For fathers who travel extensively due to their work schedules, flexibility and make up time is an important part of any custody and visitation schedule. If a father is going to miss one or more weeks of time with their children, a custody and visitation order can layout how the time will be made up after the father returns from the business trip.

Bonding with your children is a big part of getting joint or full custody for fathers

A custody order with frequent and regular contact does not just happen because you want it. If, during your marriage, you have not spent very much time with your children and are not bonded with them, you face an uphill climb if you intend to suddenly, after separation, get 50/50 custody.

That however does not mean you should give up on your children and take whatever custody and visitation schedule is offered to you.

Fathers need to make their children a priority in their lives if they want joint or full custody.

For fathers in such a situation, it is time you make the choice. Are your children a priority in your life or not?

If you answered yes to this question, you must start to act consistent with your answer.

How do you do this? You start by spending your actual visitation time with the children. That means you do not pawn off the children to your parents, daycare facilities or babysitters. That means you keep the children’s routines or add to them so that the children not only feel comfortable at your home but also look forward to coming there.

Fathers who want custody but do nothing when the mother refuses to co-parent and cooperate make a serious mistake.

In addition, so long as you intend to follow through, you must ask the children’s mother for additional time through a cooperative and reasonable tone. If the children’s mother refuses to agree to additional time, one of the worst things you can do is to do nothing.

In such a situation, once you are able to establish that you spend time with your children and can handle the additional time, hiring an experienced child custody lawyer is a good idea so that you can bring to the courts attention all of these facts as well as the mother’s refusal to co-parent and act in the children’s best interest.

Remember that California Family Code 3020(b) specifically states that it is the public policy of this state:

The Legislature finds and declares that it is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except where the contact would not be in the best interest of the child, as provided in Section 3011.

Take those words seriously. It is the law.

How to get full custody as a father when faced with an abusive or neglectful mother?

How to get full custody as a father when faced with the alienating or uncooperative mother?

This is the hardest thing a father who wants to get full custody can go through. Unfortunately, although it is not necessarily gender specific, certain parents refuse to reasonably communicate, co-parent and even go as far as alienating the children from the other parent.

In such situations, your strategy may have to change if you intend to act with your children’s best interests in mind. Any parent, including a mother, who refuses to co-parent and alienates the children (which can come in many forms including false allegations of abuse as well as psychological abuse), should not have joint custody of the children.

These types of cases require discipline, diligence and a father with the courage to ask for full custody

We believe parents who engage in such conduct are a danger to the children and, if the conduct does not stop, it may escalate as a child gets older, thereby causing a greater division between the non-alienating parent and child relationship.

For fathers who seek full custody, there is good news. You have numerous options available to you including but not limited to:

• Using the family law discovery process to flesh out the mother’s allegations,
• Requesting and having the court order a forensic psychological evaluation (often called a child custody 730 evaluation),
• Having the court order a formal child custody investigation, and
• The appointment of a lawyer for the children.

There are other options in addition to the above. Our family law firm employs these and other strategies for fathers who want to get full custody from mothers.

It is important for you to know, as a father, that if you do nothing, the chances of you being able to ever get joint or full custody of your children may reduce significantly.

That is because children who are consistently alienated from one parent overtime may, as they get older, not want to spend time with that parent and, once the child reaches a certain age, California law does allow the child to have a voice in the family law process and allows the child to state a preference in custody cases.

Featherstone v. Martinez –  “[i]n a vacuum, [Mother’s] declaration contained lies, was misleading, entitled, controlling, manipulative, constitutionally abusive, and dismissive of any rights to meaningfully participate in co-parenting from the initial requests and arguments of the initial filing till now [Father].”  The court deemed the request “that the court prevent overnights for two years, while limiting [Father] to an approximately one-quarter or one-half of one percent timeshare for those two years” “in and of itself, sanctionable”

Featherstone v. Martinez – “[T]he way you wrote it, it was along the lines of, I control everything, I’m the boss, and, you know, I’ll do him a favor and let him see his child.  That is not how it works. You are co-equal parents. Moms get the advantage because technically, literally, when a child is born, they are there, obviously. But then when it comes to court, they think, well, I’m the mom. I always win.” Mother agreed Father had always been involved in Minor’s life and the court then remarked, “So it’s not a lack of familiarity. You should literally be at 50/50. Not, I let him see her whenever he wants.  But he has a weird travel schedule.”

When Mother informed the court that, during mediation, she offered Father six hours of visitation “or whenever he’s home[,]” the court asked Mother if she would like it if the roles were reversed and said: “I know how hard it is.  You gave birth to the child.  You held the child.  You’ve taken care of this child.  It’s hard to conceptualize that he is every bit of the parent that you are, especially in this case because he’s been there from birth.”  The court then said, “So here’s the law:  If everything is equal, you’re supposed to be sharing 50/50.  Not six hours.  50/50.”

The court then made its ruling as follows: “I’m going to side completely with respondent today, and I think in the future you’re going to have a really hard time, because although I’ve tried to explain it, emotionally—and I understand—you do not feel like he’s an equal parent and you feel like you need to drag this out and make it slow.”

Featherstone v. Martinez – Family Court Sanctions – $$$

This is an appeal from a family court’s self-described sua sponte sanctions order under Family Code section 271.1 The family court judge ordered Appellants (Mother) and her attorney, to each pay $10,000 to Respondent (Father) and partly justified the sanctions on its finding that Appellants unjustifiably accused the judge of being biased (or appearing to be biased).

The Second Appellate District considered whether the sanctions order represents an abuse of the family court’s discretion and reversed the family court’s order. The court explained that as to the attorney, the family court’s sanctions award is obviously wrong: Section 271 permits imposing sanctions only on a party, not a party’s attorney, and the sanctions award against the attorney is, therefore, improper. As against Mother, the sanctions award is an error, too, even if a marginally less obvious one. There is a question as to whether section 271 even authorizes a family court to issue sanctions on its own motion, but the court explained it need not decide that issue because the conduct relied on by the family court to impose sanctions here, even considered in the aggregate, does not rise to the level of meriting sanctions. The family court abused its discretion in concluding otherwise.

Filed 12/21/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from an order of the Superior Court of Los Angeles County, James E. Horan, Judge.  Reversed.

Decker Law and James D. Decker for Plaintiff and Appellant and Objector and Appellant.

No appearance for Defendant and Respondent.

This is an appeal from a family court’s self-described sua sponte sanctions order under Family Code section 271.1 The family court judge ordered appellants Annaquite Featherstone (Mother) and her attorney, Crystal Hill (Hill), to each pay $10,000 to respondent Brian Martinez (Father) and partly justified the sanctions on its finding that appellants unjustifiably accused the judge of being biased (or appearing to be biased).  We consider whether the sanctions order represents an abuse of the family court’s discretion. LEARN ABOUT SUA SPONTE HERE

1. BACKGROUND
2. Case History
3. The petition

Mother and Father had a child (Minor) together in 2019.  Approximately two months after Minor was born, Mother filed a parentage petition requesting primary physical and joint legal custody of Minor.  In her supporting declaration, Mother represented Father traveled a lot for work and was usually in town only three to four days every month.  Mother acknowledged Father had been heavily involved in caring for Minor and had visited Mother’s house every day he was in town.  Mother declared she wanted Father to visit Minor, but she wanted each visit to be preceded by two weeks’ advance notice, to last only three to four hours, and to take place at Mother’s home until Minor was six months old.

Father filed a response with his proposed visitation schedule, and Mother filed a second declaration.  Mother expressed concerns with Father’s proposal, particularly his requests that each visit with Minor last eight hours and that overnight visits commence when Minor was six months old.  Mother proposed overnight visits be delayed until Minor was two years old.

2. The first hearing

The initial hearing in the case was held in December 2019.  Mother was not represented by counsel at the time and asked for a continuance so she could obtain counsel.  The family court granted the request but discussed visitation with the parties so it could make an initial interim visitation order.

Mother said she was very open to allowing Father to see Minor at any time.  In response, the family court referred to the declaration Mother filed with her parentage petition and expressed concern with the manner in which she drafted it: “[T]he way you wrote it, it was along the lines of, I control everything, I’m the boss, and, you know, I’ll do him a favor and let him see his child.  That is not how it works. You are co-equal parents. Moms get the advantage because technically, literally, when a child is born, they are there, obviously. But then when it comes to court, they think, well, I’m the mom. I always win.” Mother agreed Father had always been involved in Minor’s life and the court then remarked, “So it’s not a lack of familiarity. You should literally be at 50/50. Not, I let him see her whenever he wants.  But he has a weird travel schedule.” The court also asked Mother if she was breast-feeding—admonishing her “[d]on’t . . . lie” and “[d]on’t exaggerate”—before she answered.  When Mother said she was not breast-feeding, the court observed that this meant there were “no logistical problems” with visitation.

When Mother informed the court that, during mediation, she offered Father six hours of visitation “or whenever he’s home[,]” the court asked Mother if she would like it if the roles were reversed and said: “I know how hard it is.  You gave birth to the child.  You held the child.  You’ve taken care of this child.  It’s hard to conceptualize that he is every bit of the parent that you are, especially in this case because he’s been there from birth.”  The court then said, “So here’s the law:  If everything is equal, you’re supposed to be sharing 50/50.  Not six hours.  50/50.”

Father clarified he was only requesting for one weekend of visitation per month, with eight hours on Saturday and eight hours on Sunday.  The court asked Mother if she thought that was unreasonable, and she replied that Minor was young and she wanted Father to get to know Minor. The court then made its ruling as follows: “I’m going to side completely with respondent today, and I think in the future you’re going to have a really hard time, because although I’ve tried to explain it, emotionally—and I understand—you do not feel like he’s an equal parent and you feel like you need to drag this out and make it slow.”

3. Mother’s motion to disqualify the judge

Mother retained Hill after this first hearing, and Hill filed a motion in March 2020 to disqualify the family court judge under Code of Civil Procedure section 170.1 because the judge exhibited bias against her at the earlier December hearing we just described.  When the parties appeared in court before the hearing date on the motion to disqualify, Hill informed the family court that she had filed a motion for disqualification.

The family court judge stated the motion to disqualify him was “almost by definition untimely under these circumstances.”  Hill, however, represented that her office received the transcript for the earlier December hearing only earlier that same week and the delay in transcript preparation prevented pursuing the motion to disqualify more quickly.  The judge stated he was advancing the motion to the hearing and striking it as untimely because, in his view, Mother should have filed the motion in December 2019 or January 2020 when she was aware of the asserted bias.

The family court also briefly addressed visitation issues during this same hearing.  During the course of argument, the court stated Hill was not directly answering the court’s questions and warned that, without improvement, they would “start talking about sanctions.”

4. Proceedings in 2020 that are pertinent to the court’s later award of sanctions

Mother submitted a proposed judgment in July 2020.  Father objected to the judgment and contended it did not reflect orders the court had made in several respects.[2]  The family court rejected the proposed judgment.

At a hearing in November 2020, the family court instructed the parties to share driving duties for physical custody exchanges and to record the exchanges so they would have evidence in case an issue arose.  The court also made a record regarding the proceedings that had transpired in the case and expressed concern with, among other things, the initial declarations Mother filed earlier in the case.

5. Proceedings in 2021, and the court’s return to discussing sanctions

In February 2021, Father filed a trial brief in which he requested Mother be ordered to pay $7,000 toward the cost of his attorney fees (that amounted to $24,851 by that point).  He argued the requested fees had been incurred defending against Mother’s unreasonable litigation, including: her motion to disqualify the family court judge, her proposed judgment that did not correctly reflect the orders the court had made, and her refusal to settle.  A declaration accompanying Father’s trial brief that included the request for sanctions averred the attorney fees request was made pursuant to the Family Code’s sanctions statute—section 271, subdivision (a)—and further described what was characterized as Mother’s unreasonable litigation behavior.

At a hearing on February 24, 2021, the family court again attempted to make a record of how the litigation had proceeded to that point.  The court specifically emphasized Mother’s early declarations and her motion for disqualification as concerning.  In reference to the latter, the court acknowledged it was “not so sure [it] should wade into” the issue because “[Mother] has the right to believe I was biased.  She always has that right, and I can’t sanction her for that.”  But the court observed “she does not have the right to file late, improperly noticed, and/or out of context motions.”

The court opined both sides “seem to have come so far that I’m not sure sanctions are necessary” but the court said it would permit both sides to argue whether sanctions should be imposed.  Mother argued Father had not properly noticed a motion for sanctions under section 271.  The court responded and stated it believed the question of whether Father gave proper notice was irrelevant because it had done (or could do) the requisite noticing itself:  “I think I noticed petitioner for sanctions on my own motion at one of the earlier hearings when things were not proceeding so well, and I have slid back against that amount. . . .  [¶]  But I did notice her.  And counsel really doesn’t have to do anything further.  It’s the court’s own motion.  It’s a 271 sanction.  The only thing I have to do is notice her.”[3]

Father’s counsel later filed a supplemental declaration regarding Father’s request for attorney fees under section 271, describing actions Mother had—or had not—taken in the period spanning from March to June 2021, including continued disputes over holiday visitation.  The declaration represented Father incurred $43,455 in attorney fees as of May 2021 and asked the court to order Mother to pay Father $10,000 toward these fees.

6. The court finds Mother’s conduct is sanctionable

At a June 21, 2021, hearing, after discussing agreements reached on other issues, the parties began discussing their agreement that Father would have one video call per week with Minor.  Father asked that the video call take place on any platform that allows video interaction between Father and Minor.  Mother interjected that she agreed to use Zoom only because Zoom is recordable.  The court asked why Mother wanted to record the calls, and Mother said she wanted the ability to record because in the past she and Father disagreed about whether Father made certain statements.

After further discussion regarding Mother’s request, the court said, “[t]here has been, and I have been concerned, and we will touch on that later, that despite all the good things petitioner has to offer, there has been a tone of control in this case.  It started with the very first pleading.”  Mother’s counsel then said, “[w]e object to that statement as being biased.  Once again we’re going to renew our motion to move the matter from this courtroom.”

The family court decided it would “temporarily move into a sanctions hearing” and described the history of the case.  In doing so, the judge stated Mother’s request to record Father’s video calls with Minor was “offensive.”  The judge also stated Mother had a controlling mindset, which continued until at least March 5, 2020.  He then said, “[b]ut here I sit just asking questions, making clear to both sides what my concerns are, and every time I attempt to do so, I’m one, interrupted, and two accused.”  Later, the court said the case was close to resolution and it would have been a great opportunity for the court to give “just the tiniest sanctions” but “now sanctions are back, thoroughly back, on the table, and I am now accused of bias because I am concerned that your position might be a little overreaching and controlling.”[4]

1. The Sanctions Hearing

The court held a hearing to impose sanctions in September 2021.  At the outset, the court stated the parties were there “for sanctions which have been noticed, re-noticed, and repeatedly noticed.”  After hearing argument from both counsel, the court stated its intention to make a record and then issue sanctions.  The court again delivered a lengthy recitation of its perceptions of the case, beginning with Mother’s initial declarations.

According to the court, “[i]n a vacuum, [Mother’s second] declaration was misleading, entitled, controlling, manipulative, and dismissive of any rights to meaningfully participate in co-parenting by [Father].”  The court deemed the request “that the court prevent overnights for two years, while limiting [Father] to an approximately one-quarter or one-half of one percent timeshare for those two years” “in and of itself, sanctionable” but declared the court was “far to[o] experienced to have moved in that direction without giving [Mother] the time and space to become familiar with the law and the real-world practices of family court in California.”

Regarding the motion to disqualify the judge, the court stated the motion was untimely and procedurally deficient.  It stated any facts supporting an alleged claim of bias were known to Mother in late December 2019.  It also stated the substance of the motion “was written out of context in an intentionally inflammatory and dishonest manner.”  The court described its own rhetoric at the December 2019 hearing as an effort “to alert mothers to the law in the state of California, while repeatedly indicating empathy for the circumstances which bring litigants to such unwarranted and overreaching requests,” and characterized the motion to disqualify as “altering the court’s statements, removing the portions wherein the court repeatedly expressed empathy towards the petitioner, while presenting the now out-of-context, aggressive-sounding language as accurate and complete.”

The court stated it declined to sign a judgment prepared by Mother in November 2020 “because it was replete with errors and omissions, which consistently, and without basis, favored [Mother].  Detailed and accurate objections had been raised by [Father’s] counsel.”

The court then reviewed the hearings in November 2020 and February 2021.  It described the November hearing (during which the court suggested the parties’ record their physical custody exchanges) as “the very last date any reasonable litigant could rationally feel as though the court was doing anything other than moving them towards resolution.”  In discussing the February 2021 hearing (the hearing where the court said it had properly noticed sanctions itself), the court said there could be no doubt it was “intently evaluating and addressing any and all issues, without bias.”[5]

The court addressed the June 2021 hearing, remarking it had started well, and the sanctions “already noticed . . . were likely to move downward” as the parties were on the verge of ending the case.  Then, in the court’s view, Mother “without good cause” asked to limit video interactions between Father and Minor to Zoom so that she could record them, a request the court deemed “alarming, outrageous, unbelievable, tone deaf, counterproductive, and/or inconsistent with Family Code 271.”  The court stated it “cautiously began to indicate the problem with her request” at which point Mother’s attorney interrupted “in a rude and abrupt manner” and accused the court of bias.  The family court also remarked upon the demeanor of Mother and her attorney at the hearing, stating that at one point the court said “the parties should remain calm until the record is complete.”

The court opined it was clear “that the court was exactly correct in discerning the mindset that was inconsistent with Family Code 3040” and found “the court’s initial concerns have continued to permeate the entirety of the litigation.”  The court sanctioned Mother in the amount of $10,000 and separately sanctioned her attorney Hill as well, also in the amount of $10,000.

1. DISCUSSION

As to Hill, the family court’s sanctions award is obviously wrong: Section 271 permits imposing sanctions only on a party, not a party’s attorney, and the sanctions award against Hill is therefore improper.  As against Mother, the sanctions award is error too, even if a marginally less obvious one.  There is a question as to whether section 271 even authorizes a family court to issue sanctions on its own motion,[6] but we need not decide that issue because the conduct relied on by the family court to impose sanctions here, even considered in the aggregate, does not rise to the level of meriting sanctions.  The family court abused its discretion in concluding otherwise.

1. Family Code Section 271

“Section 271 provides that a family court may impose an award of attorney fees and costs ‘in the nature of a sanction’ where the conduct of a party or attorney ‘frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.’  (§ 271, subd. (a).)”  (In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1316.)  “Expressed another way, section 271 vests family law courts with an additional means with which to enforce this state’s public policy of promoting settlement of family law litigation, while reducing its costs through mutual cooperation of clients and their counsel.”  (Id. at 1318.)  “We review an award of attorney fees and costs under section 271 for abuse of discretion.”  (In re Marriage of Fong (2011) 193 Cal.App.4th 278, 291.)

1. The Family Court Erred by Sanctioning Mother’s Attorney

Section 271, subdivision (c) provides that “[a]n award of attorney’s fees and costs as a sanction pursuant to this section is payable only from the property or income of the party against whom the sanction is imposed, except that the award may be against the sanctioned party’s share of the community property.”  (§ 271, subd. (c), italics added.)  Similarly, section 271, subdivision (b) provides sanctions shall be imposed “only after notice to the party against whom the sanction is proposed to be imposed and opportunity for that party to be heard.”  (§ 271, subd. (b); italics added.)

As should be clear from the text of the statute and ample precedent, the provisions of section 271 do not provide for sanctions to be imposed on counsel for a party.  (E.g., Burkle v. Burkle (2006) 144 Cal.App.4th 387, 403, fn. 7 [sanctions under section 271 may only be imposed on a party, not an attorney]; Orange County Dept. of Child Support Services v. Superior Court (2005) 129 Cal.App.4th 798, 804 [sanctions under section 271 “can be imposed only against a party”]; see also Shenefield v. Shenefield (2022) 75 Cal.App.5th 619, 629 [including attorneys in sanctions provisions under section 271 would be redundant because attorneys are subject to sanctions for such behavior under Code of Civil Procedure section 128.5].)

The only ground on which the family court here made its sanctions order was section 271.  Because an attorney may not be ordered to pay a sanction under that statute, the family court’s order compelling Hill to pay $10,000 in sanctions was improper and must be reversed.

1. Sanctions Were Not Warranted Against Mother Either

The family court’s final recitation of the grounds for its award of sanctions included: (1) Mother’s early declarations in the case; (2) Mother’s section 170.1 motion to disqualify the judge for bias; (3) Mother’s proposed judgment; and (4) Mother’s request that Father’s video calls with Minor take place on Zoom only.  Threaded throughout the court’s recitation were (1) the court’s characterizations of Mother’s requests as “entitled,” “controlling,” and “overreaching,” and (2) its own umbrage at being accused of bias and being the subject of a disqualification motion.  Individually or collectively, this is not litigation behavior that a judge, staying within the bounds of reason, could conclude merited sanctions at all—much less a $20,000 sanctions award (if we count the improper amount assessed against counsel too).  (See generally Goodman v. Lozano (2010) 47 Cal.4th 1327, 1339 [“‘“The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason”’”].)

The family court’s discussion of the grounds for its sanctions order referenced what it called Mother’s controlling “mindset.”  Yet section 271 provides for sanctions where the conduct of a party or attorney frustrates the policy of the law to promote settlement.  The record indicates that, in sanctioning Mother for the requests she made in her early declaration and for requesting video calls take place on Zoom, the court was principally sanctioning Mother not for taking actions that frustrated settlement efforts but for taking litigation positions with which the court disagreed.[7]  That is improper.

Mother’s motion to seek disqualification of the family court judge and her objection to perceived bias again at the February 2021 hearing were not sanctionable either.  The family court itself had it right when it stated during an earlier hearing that “Petitioner has the right to believe I was biased.  She always has that right, and I can’t sanction her for that.”  But the record reveals the court was unable to hold to that standard and did what it said it could not by improperly relying on Mother’s disqualification motion and renewed objection to impose sanctions.[8]

With these grounds for sanctions appropriately put aside, that leaves only Mother’s filing of a proposed judgment with errors.  That cannot justify the sanctions award here, which is infected with other inappropriate considerations that we have detailed.  Further, the particular errors in the proposed judgment were not so significant as to merit sanctions anyway.

DISPOSITION

The family court’s order is reversed.  Appellants shall bear their own costs on appeal.

CERTIFIED FOR PUBLICATION

BAKER, Acting P. J.

We concur:

MOOR, J.

KIM, J.

[1]         Undesignated statutory references that follow are to the Family Code.

[2]         Specifically, Father objected the proposed judgment: (1) did not specify the child custody and support orders were “Non-Montenegro”; (2) did not include the date on which Mother’s “tie-breaking authority” would end; (3) misstated aspects of temporary visitation ordered by the court; (4) did not specify the parties would share joint legal custody; (5) misstated the child support amount by $70; (6) stated additional child support had been ordered when the court had not ordered additional support; and (7) included an incorrect child support calculation summary.  Counsel for Mother would later explain that aspects of the support amounts in the proposed judgment were incorrect because of an inability to obtain information from Father.

[3]         During the same hearing, the court referred to Father’s request for attorney fees as “redundant.”  The minute order for the hearing recites, “Both sides are noticed as to sanctions.”

[4]         The minute order for the hearing states, “[t]he Court finds that petitioner and petitioner’s counsel are subject to sanctions” and continued the issue of sanctions to the next court date.

[5]         In the course of bristling at what it characterized as suggestions from Mother and Hill that the court was “engaging in some quest to favor fathers over mothers,” the court pointed to what it described as “extremely soft, mother-friendly, pendente lite orders” that it made at the initial hearing in the case.

[6]         Compare § 271, subd. (a) [“In order to obtain an award under this section, the party requesting an award of attorney’s fees and costs is not required to demonstrate any financial need for the award”], italics added with Code Civ. Proc., § 128.5, subd. (c) [expenses may be imposed pursuant to section “on the court’s own motion”]; Code Civ. Proc., § 128.7, subd. (c)(2) [court may enter order describing sanctionable conduct “[o]n its own motion”]; Code Civ. Proc., § 177.5 [court may impose sanctions under section “on the court’s own motion”].

[7]         As to the matter of Zoom recording, the family court itself had previously encouraged the parties to record each other (when participating in physical custody exchanges—to avoid disputes about what occurred).

[8]         The best that can be said for the family court’s reliance on the disqualification motion as grounds for sanctions is that the court believed what it thought was a procedural defect in the motion (purported untimeliness) was fair game even if the substance was not.  There are several problems with that, however.  One, the family court also cited counsel’s renewal of a bias objection during the June 2021 hearing as reason for sanctions, and there was undisputedly no timeliness problem with that objection.  Two, one cannot read this appellate record without coming away with the impression that the family court was just miffed about being accused of bias.  On a personal level, that is understandable.  But exercise of the judicial function requires more, and the mere accusation of bias here is not reason for a five-figure sanction—or any sanction, for that matter.  Three, the filing of a motion is generally not sanctionable under section 271 unless it is “so devoid of merit that no reasonable person would have pursued it.”  (In re Marriage of Abrams (2003) 105 Cal.App.4th 979, 991.)  Procedurally, the motion was not obviously untimely in light of Mother’s retention of counsel and the date on which the transcript of the pertinent hearing was received.  Substantively, Mother’s motion to disqualify the judge was not utterly devoid of merit either.  A non-frivolous argument could be made that the family court’s statements at the December 2019 hearing suggested the court was allowing an apparent view about how mothers generally act (the court stated its remarks during the hearing would “alert mothers” to the law in the state of California) to color its view of Mother’s then-self-represented litigation of her case.

cited https://law.justia.com/cases/california/court-of-appeal/2022/b316280.html#:~:text=The%20family%20court%20judge%20ordered%20appellants%20Annaquite%20Featherstone%20(Mother)%20and,or%20appearing%20to%20be%20biased).

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