FAMILY LAW ARTICLES
By: Deborah Jurgensen.
The California Second Appellate District Court held, in January 2016, that a parent does not have to be present for the Juvenile Court to make custody orders essentially removing their children from their care, under certain circumstances. In re F.S. Read on, to find out how something that sounds so wrong can turn out to be right under the law.
Mom and Dad, in this case, engaged in mutual domestic violence in front of their young daughter. Not everyone knows this, but if you expose your children to domestic violence in a relationship, you are at risk of the juvenile court intervening in your life and possibly removing your child from your care and custody for your failure to protect your child from witnessing such violent behavior.
Luckily for Mom, the Trial Court found Dad to be the primary aggressor and placed the child with Mom, even granting a restraining order against the child’s father. The Trial Court ordered that Dad was allowed only monitored visitation. In addition, both parties were ordered to not take the child out of the State of California without first notifying the social worker.
Promptly thereafter, Mom went to Dad’s house with the child and engaged in a violent altercation with him. Mom threw a phone at Dad, striking him in the forehead, causing a bloody gash. This time, she was arrested and charged with domestic violence. The Department of Children and Family Services (hereafter “the Agency”) got wind of this and tried contacting Mom, only to find that she had relocated to Texas with the minor child in direct violation of the Court’s orders.
Mom compounded all this by telling the Agency’s social worker that Mom had no intention of returning to California, and claimed that she got permission from her lawyer to move. (In case you are wondering, no lawyer has authority to tell you to disobey a court order.) The Agency requested that the Court issue a warrant for Mom’s arrest and for return of the child from Texas to California.
At the hearing, Mom was not present. The child’s father, through his attorney, argued that the Trial Court could not proceed without the opportunity to cross examine Mom, that to so proceed would violate the father’s constitutional due process right to confront and cross-examine witnesses.
The Appellate Court noted that even if Mom were present, it would not have changed the outcome of the hearing. The Appellate Court said that “substantial evidence” supported the Agency’s claim that Mom had clearly violated the juvenile court’s order and there was no reason to believe that she would stop exposing the child to domestic violence, or that she would obey the orders of the court.
How does this impact you? Well, if you are involved in a dispute regarding custody of your children, or any dispute really, try to take the moral high ground from the beginning. In this case, both parents attempted to deceive the court and the child welfare Agency, and then attempted to benefit from this behavior. Don’t do that! The court rewards good behavior, and “good behavior” in a family law or dependency situation starts with acting always in your children’s best interests – which includes obeying court orders.
The take aways from this case are simple: Don’t engage in mutual combat in front of your children; don’t violate court orders; and always be present for your court appearances. And if you cannot be there – for your own sake, have a lawyer appear for you.