Below are summaries of the recent cases affecting child custody issues in California.  AFCC California and the Insights staff are very grateful to Dawn for her hard work gathering this vital information for our membership.

In re Marriage of C.T. and R.B.

In re Marriage of C.T. and R.B. (Cal. Ct. App., Mar. 19, 2019, No. E070089) 2019 WL 1253362: In this case, the Fourth District reversed a Riverside County judge who issued a final custody order changing custody of 12-year-old A.B. from C.T. in California to R.B. in Arkansas. Each party had requested sole physical custody; at the hearing, the trial court switched A.B.’s custody from C.T., with whom he had lived his entire life, to R.B., who had visited only a month per year since 2008. The panel held that the trial court’s order was an abuse of discretion because R.B. had not met his burden of establishing that moving A.B. to Arkansas would not cause him detriment and that the change in custody was in A.B.’s best interests. It held that R.B. had not established any change in circumstances that “are of a kind to render it essential or expedient for the welfare of the child that there be a change” and that C.T.’s violations of a prior custody order’s terms did not constitute a change in circumstances. It also held that the trial court should have considered other, less drastic remedies than a change of custody after finding that C.T. was the parent less likely to share custody and that the weight of the LaMusga factors regarding best interests “heavily favors not changing A.B.’s physical custody from Mother to Father.”

Darab Cody N. v. Olivera

Darab Cody N. v. Olivera (2019) 31 Cal.App.5th 1134, 242 Cal.Rptr.3d 891: In this case, a petition to establish a parental relationship, the Second District affirmed a Lost Angeles County judge that denied M’s motion for relief from default under CCP §473(b). It also affirmed two orders granting F’s motion to quash subpoenas and an order denying her request that F pay her attorney fees under Family Code §7605. M’s attorney filed a declaration attesting to her mistake in being unaware that a response to the petition had not been filed. However, the trial court found the attorney’s declaration not credible and denied set-aside relief; “The trial court’s detailed order explains that counsel for Cody requested—twice by telephone and once in writing—Abboud to file a response to Cody’s petition, all before filing Cody’s request for entry of default.” As for M’s request for attorney fees, the panel said that

“(d)eciding on a request for attorney’s fees and costs requires the court to exercise its discretion based on a consideration of all the relevant factors. Here the fees do not appear to have been incurred on necessary issues or in a reasonable manner and, in some instances, the fees were incurred in a way that increased the fees for all parties. Requiring the opposing party to pay Respondent’s fees under the circumstances presented by this case is not appropriate and the Court exercises its discretion to deny the request.”

In re Marriage of Anka & Yeager

In re Marriage of Anka & Yeager (2019) 31 Cal.App.5th 1115, 242 Cal.Rptr.3d 884: In this case, which involved two custody cases, stating that “besides being an advocate to advance the interest of the client, the attorney is also an officer of the court,” the Second District affirmed an order for $50,000 in sanctions against an attorney “for disclosing information contained in a confidential child custody evaluation report” in violation of Family Code §§3025.5 and 3111, but reversed the order as against the attorney’s client. It said that

Meyer took Yeager’s deposition in the Anka action. She asked Yeager numerous questions without objection about what he told Dr. Russ during the custody evaluation; what his child told Russ during the custody evaluation; and what Russ found and concluded. Yeager answered that he did not remember to most of the questions. After a lunch break, Yeager did not return to continue the deposition.

Yeager moved for sanctions in the Yeager action under sections 3025.5 and 3111, subdivision (d) for disclosing information contained in a confidential custody evaluation. The trial court granted the motion.

The trial court found the disclosures were made maliciously, recklessly, without substantial justification, and were not in the best interest of the child. The court ordered Anna and Meyer to pay jointly and severally a fine of $50,000. The court found that the fine was large enough to deter repetition of the conduct; and that in absence of evidence to the contrary, the fine would not impose an unreasonable financial burden on the parties.

Although the trial court did not abuse its discretion in sanctioning Meyer, the sanctions against Meyer’s client Anna are another matter. There is nothing in the record to suggest Anna directed or even encouraged Meyer to disclose privileged information. Presumably Meyer, a seasoned trial attorney, was in charge of the proceedings. Most clients assume their attorney’s questions are proper and will not expose them to sanctions. There is no suggestion that Anna thought otherwise.

Guardianship of C.E.

Guardianship of C.E. (2019) 31 Cal.App.5th 1038, 243 Cal.Rptr.3d 428: In this case, the Sixth District reversed a Santa Cruz County’s trial court’s order denying Appellant’s petition to remove Respondent’s as C.E.’s guardians and to name her as guardian. It held that the court erred in failing to consolidate the guardianship action with the adoption proceeding. It held:

The statutes governing guardianships and adoptions contain numerous provisions requiring trial courts to consolidate guardianship and adoption proceedings. In support of her many requests to consolidate the proceedings made to the trial court, Appellant cites Probate Code section 1510, subdivision (i), and Family Code section 8802, subdivision (d). Probate Code section 1510, relevant to a petition to be appointed as guardian, provides, “If the proposed ward is or becomes the subject of an adoption petition, the court shall order the guardianship petition consolidated with the adoption petition, and the consolidated case shall be heard and decided in the court in which the adoption is pending.” (Prob. Code, § 1510, subd. (i).) Family Code section 8802, which governs Appellant’s request to adopt C.E., similarly provides, “If the child is the subject of a guardianship petition, the adoption petition shall so state and shall include the caption and docket number or have attached a copy of the letters of the guardianship or temporary guardianship. The petitioners shall notify the court of any petition for guardianship or temporary guardianship filed after the adoption petition. The guardianship proceeding shall be consolidated with the adoption proceeding, and the consolidated case shall be heard and decided in the court in which the adoption is pending.” (Fam. Code, § 8802, subd. (d).)

Ultimately Respondents’ claims fail because the Legislature has stated in four separate statutes that once an adoption petition has been filed and is pending, the guardianship petition is to be consolidated with the adoption case, “. . . and the consolidated case shall be heard and decided in the court in which the adoption is pending.” (Fam. Code, §§ 8714.5, subd. (f), 8802, subd. (d); Prob. Code, § 1510, subd. (i); see also Fam. Code, § 8714 [mandates consolidation of guardianship and adoption without specifying in which proceeding the matters should be heard].) The Legislature’s choice to specifically mandate that this procedure be followed, and its inclusion of identical language in every guardianship and adoption statute, signals that the choice of language was no idle act. (See Imperial Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 390, citing Shoemaker v. Myers (1990) 52 Cal.3d 1, 22 [“ ‘We do not presume that the Legislature performs idle acts, nor do we construe statutory provisions so as to render them superfluous.’”].)

In re Roger S.

In re Roger S. (2018) 31 Cal.App.5th 572, 242 Cal.Rptr.3d 791: In this case, the Second District reversed and remanded a Los Angeles County juvenile court referee’s order sustaining the dependency petition but terminating dependency jurisdiction with an order awarding joint custody of C to his parents with physical custody to F. It held that

(t)he juvenile court’s finding Roger was at substantial risk of suffering serious physical harm or illness as a result of Mother’s neglectful conduct was not supported by sufficient evidence. It is undisputed Roger never actually suffered physical harm or illness as a result of Mother’s conduct.

Nothing in the record indicates that having body odor or wearing clothes that were dirty or too small-the only circumstances alleged in the petition the juvenile court sustained-placed Roger at substantial risk of physical harm or illness. There was no nexus cited between Roger’s hygiene and any medical or dental condition.

The petition did not include allegations about Mother’s drug use, Roger’s behavioral and academic issues, or Mother’s supervision of Roger-all circumstances DCFS referenced in its respondent’s brief. But even if it did, such allegations would not have supported dependency jurisdiction because the evidence in the record does not show a nexus between these circumstances and a substantial risk of physical harm or illness to Roger.

We reverse the jurisdiction finding because it was not supported by sufficient evidence showing Roger was at substantial risk of suffering serious physical harm or illness as a result of Mother’s neglectful conduct.

Because there was no basis for dependency jurisdiction, we also reverse the disposition order and the custody order the juvenile court issued.

At this juncture, the disputed custody and visitation issues are matters for the family law court to resolve. Accordingly we remand the case to the family law court for a hearing on custody and visitation.

In re E.T.

In re E.T. (2018) 31 Cal.App.5th 68, 242 Cal.Rptr.3d 391: In this case, the First District reversed an Alameda County juvenile court’s denial of M’s petition asserting changed circumstances and seeking modification of a court order setting a hearing to terminate her parental rights and its order terminating her parental rights without finding that her children are adoptable. It said that “(t)his is the rare case where the juvenile court erred in failing to recognize that Mother’s relationship with her children outweighed the benefit to the children that would accrue from termination of parental rights and a plan of adoption,” reversed the trial court’s termination order and remanded “for the juvenile court to consider an appropriate long-term plan.” It held that “the court abused its discretion when it declined to find a beneficial relationship exception because the twins’ bond to Mother ‘was not to such an extent that they can’t be happy in their godparents’ placement.’ The standard is whether the children benefit from Mother’s presence in their lives, not whether they could eventually be happy without her.”

County of Riverside v. Estabrook

County of Riverside v. Estabrook (2019) 30 Cal.App.5th 1144, 242 Cal.Rptr.3d 259: In this case, the Fourth District reversed a Riverside County court that granted F a judgment of non-paternity and dismissed the County’s complaint for child support with prejudice. The panel held that the trial court erred in not ordering genetic testing because all of the elements of Family Code §7551, making a genetic testing order mandatory, and that substantial evidence did not support the family court’s application of the marital presumption because “(t)here is no evidence of solid value reflecting Mother was married to Husband. In the evidence provided, Father and Father’s attorney failed to explain how they were personally aware that Mother was married to Husband. Additionally, there is no evidence of solid value reflecting Mother and Husband were cohabitating at the time J.L. was conceived.”

Lief v. Superior Court

Lief v. Superior Court (2018) 30 Cal.App.5th 868, 242 Cal.Rptr.3d 52: In this case, the Fourth District issued a writ of mandate compelling the San Diego County Superior Court to vacate an order denying F’s ex parte application for an order preventing M from removing C from California and to enter a new order granting F’s application. It held that the trial court’s calculation of when the 30-day stay of the court’s order allowing removal of the child from the state was erroneous and that the 30-day period began to run when the court filed the judgment granting M’s move-away request, not when it made the tentative decision granting the motion.

In re Cody R.

In re Cody R. (2018) 30 Cal.App.5th 381, 241 Cal.Rptr.3d 399: In this case, the Fourth District dismissed an appeal from an order terminating M’s parental rights and denied a petition for writ of habeus corpus. It held that M did not have standing to appeal the order on the ground that HHSA did not give preferential placement consideration to C’s relatives. It held that

(a)ny placement error at the dispositional hearing would not have affected the order bypassing reunification services and setting a section 366.26 hearing. The Legislature requires the juvenile court to bypass services in cases like this one involving a jurisdictional finding that the parent has inflicted severe physical harm on her child unless the court finds, by clear and convincing evidence, that reunification is in the child’s best interest. (§§ 300, subd. (e), 361.5, subds. (b)(6)(C), (c)(2) & (f).) Because the evidence clearly showed that Cody would be at risk of serious physical harm or death if returned to Shauna’s custody, the court did not make such a best interest finding. Thus, the court would have bypassed services and set a section 366.26 hearing whether Cody was placed with a relative or in foster care.

W.M. v. V.A.

W.M. v. V.A. (2018) 30 Cal.App.5th 64, 241 Cal.Rptr.3d 170: In this case, the Second District reversed and remanded a Los Angeles County trial court’s order granting M’s motion to quash ex parte temporary custody and visitation orders on the grounds that California did not have jurisdiction to issue them under the UCCJEA, and that Belarus had jurisdiction over custody issues. It held that F had not been given notice of the Belarus action “and because notice was not given ‘in a manner reasonably calculated to give actual notice’ (§ 3408, subd. (a)), the Belarus court did not have jurisdiction in conformity with UCCJEA standards. The trial court therefore erred in granting mother’s motion to quash and refusing to exercise its jurisdiction.”

In re Marriage of Martindale & Ochoa

In re Marriage of Martindale & Ochoa (2018) 30 Cal.App.5th 54, 241 Cal.Rptr.3d 180: In this case, the First District affirmed a Sonoma County trial court’s denial of the renewal of a three-year DVRO. It held that the trial court did not abuse its discretion in holding that appellant had not shown a reasonable apprehension of future abuse. It held that the trial court properly based its holding on credibility and reasonable inferences from the testimony at the renewal hearing, stating that

the trial court had evidence of affirmative efforts by respondent to avoid appellant, as well as evidence that appellant intentionally put herself in a situation where she could encounter respondent (by joining Sonoma Fit) and used the restraining order to defame respondent (the incident at the Glen Ellen Lodge). Moreover, in Cueto, the restrained party failed to attend anger management classes he had been directed to attend (ibid.); appellant has not pointed to any analogous failures by respondent. Finally, the trial court in Cueto told the previously-restrained party that “if there is ‘any contact,’ the [trial] court would ‘strongly consider another restraining order.’ ” (Ibid.) This admonishment suggested that the party seeking renewal of the restraining order had demonstrated reasonable apprehension of future abuse. (Ibid.) Again, appellant points to nothing comparable in the present case.


Dawn Gray is a Certified Specialist in Family Law. Since 1994, her practice has been dedicated to research and writing projects for family law and civil attorneys. She works with many family law attorneys throughout the state on their cases, doing research, drafting pleadings and appellate briefs. She is a past president of ACFLS and is currently on its Amicus committee. She is also a past member of FLEXCOM, serving as the Executive Editor of the Family Law News. She gives frequent presentations and continuing education classes on family law issues. Dawn is also the principal author of the 11-volume series “Complex Issues in California Family Law.” She is a member of the editorial board of the California Family Law Monthly and a frequent contributor to family law publications throughout the state.