California Divorce Blawg

Due Process in Domestic Violence Cases

An unpublished opinion out of Place County provides important information regarding what is required at a domestic violence hearing before the Court renews a permanent domestic violence restraining order.

Mother applied for the renewal of a restraining order against father.  During a short cause hearing the Court denied father's counsel's request for an evidentiary hearing.  No oral testimony was allowed at the hearing.  Relying only on the arguments of counsel and the written motion filed by wife, the trial court renewed the restraining order.  Father appealed, and won. The Court of Appeals writes:

Renewal of DVPA restraining orders is governed by section 6345.[1]  The statutory construction of section 6345 was addressed in Ritchie v. Konrad (2004) 115 Cal.App.4th 1275 (Ritchie).  Ritchie involved an order granting renewal of a DVPA restraining order.  The appellate court reversed the renewal of the restraining order on grounds that the trial court erroneously concluded that renewal was required upon mere request of a protected party.  (Id. at p. 1284.)  Ritchie held that when the restrained party contests the extension, “[a] trial court should renew the protective order, if, and only if, it finds by a preponderance of the evidence that the protected party entertains a ‘reasonable apprehension’ of future abuse.”  (Id. at p. 1290.). . . .

Even so, the restrained party is entitled to adduce evidence addressing whether there are “significant changes in the circumstances surrounding the events justifying the initial protective order.  For instance, have the restrained and protected parties moved on with their lives so far that the opportunity and likelihood of future abuse has diminished to the degree they no longer support a renewal of the order?  Or have there been no significant changes or even perhaps changes that enhance the opportunity and possibility of future abuse?”  (Ritchie, supra, 115 Cal.App.4th at p. 1291.)

     In presenting evidence to oppose renewal of a DVPA restraining order, the trial court may not bar the restrained person from introducing witness testimony.  (Ross v. Figueroa (2006) 139 Cal.App.4th 856, 865 (Ross).)  The Ross court reversed the renewal of a DVPA restraining order after the restrained person was not given the opportunity to adduce oral testimony prior to the renewal.  (Id. at pp. 865-866.)  As the Ross court explained, the lack of an evidentiary hearing with oral testimony failed to comport with the restrained person’s due process rights.  (Ibid.)  Because Ross involved the informal proceedings often conducted when all parties are self-represented, the appellate court admonished that “the referee should have advised [respondent] he could provide oral testimony . . . .”  (Id. at p. 866.)  As the Ross court noted, respondent “certainly could have testified himself and raised questions to be posed to Ross, had the referee advised him of his right to do so.”  (Ibid.)

Here, both mother and father were represented by legal counsel who acted zealously to protect the rights of their clients.  Nonetheless, father’s due process rights entitled him to an evidentiary hearing in which he could present oral testimony and documentary evidence in opposition to mother’s renewal request. [emphasis added]  (Ross, supra, 139 Cal.App.4th at p. 866.)

The appellate court makes clear:

When a party is entitled to an evidentiary hearing, a court may not substitute declarations for the testimony of witnesses.  As the California Supreme Court noted, in a case in which the trial court “called for the admission of declarations in lieu of direct testimony at trial,” “[i]t is well established . . . that declarations constitute hearsay and are inadmissible at trial . . . .”  (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1354 (Elkins).)  As the Elkins court went on to explain, “Permitting oral testimony rather than relying upon written declarations also is consistent with the historically and statutorily accepted practice of conducting trial by means of the oral testimony of witnesses given in the presence of the trier of fact.  (See Evid. Code, §§ 711, 780; Code Civ. Proc., §§ 2002, 2005.) . . .

The Court of Appeals then order the case back to the trial court for a full evidentiary hearing.

Please click here to read the original, unpublished opinion.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

 

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[1]  In pertinent part, section 6345 provides:  “(a) In the discretion of the court, the personal conduct, stay-away, and residence exclusion orders contained in a court order issued after notice and a hearing under this article may have a duration of not more than five years, subject to termination or modification by further order of the court either on written stipulation filed with the court or on the motion of a party.  These orders may be renewed, upon the request of a party, either for five years or permanently, without a showing of any further abuse since the issuance of the original order, subject to termination or modification by further order of the court either on written stipulation filed with the court or on the motion of a party.  [¶]  (b) Notwithstanding subdivision (a), the duration of any orders, other than the protective orders described in subdivision (a), that are also contained in a court order issued after notice and a hearing under this article, including, but not limited to, orders for custody, visitation, support, and disposition of property, shall be governed by the law relating to those specific subjects.”

Marriage Not Good For Your Health?

In an article published in The Atalantic.com Vernique Greenwood reviews the book The Longevity Project, written Howard Friedman, Ph.D. and Leslie Martin, Ph.D..  In their book Friedman and Martin suggest that marriage (among other things) does not necessarily contribute to good health.

Marriage was health-promoting primarily for men who were well-suited to marriage and had a good marriage. For the rest, there were all kinds of complications.

For example, women who got divorced often thrived. Even women who were widowed often did exceptionally well. It often seemed as if women who got rid of their troublesome husbands stayed healthy—most women, it seemed, can rely on their friends and other social ties. Men who got and stayed divorced, on the other hand, were at really high risk for premature mortality. It would have been better had they not married at all.

Interesting and provocative stuff.  Please click here to read the original review.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

Forbes Posts List of 10 Wealthiest Divorcees

Taking from its annual listing of billionaires, Forbes has compiled a list of the world's ten wealthiest divorcees.  They are Louis Vuitton Moet Hennessy chariman Bernard Arnault ($41 Billion), Oracle CEO Larry Ellison ($39.5 Billion), Zara founder Amancio Ortega ($31 Billion), EBX Group CEO Eike Batista ($30 Billion), Las Vegas Sands Corporation CEO Sheldon Adelson ($23.3 Billion), Thomson Reuters chairman David Thomson ($23 Billion), Wal-Mart heiress Alice Walton ($21.2 Billion), Wal-Mart chairman S. Robert Walton ($21 Billion), Henderson Land Development owner Lee Shau Kee ($19 Billion), and Severstal chariman Alexei Mordashov ($18.5 Billion).  The Huffington Post has a nice summary piece.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

What's In A Name?

Kristen McMullen and John Sugrue got married.  Kristen took John's last name.  They had a daughter named Claire, and then got a divorce.  Kristen reverted back to her maiden name.  Then she went to court to have her daughter's last name changed McMullen-Sugrue.

In her motion, Mother said she wanted Claire “to feel as if she BELONGS in the McMullen family just as much as she belongs in the Sugrue family.”  “When I remarry and have more children, I will hyphenate my name as well.  I want Claire to feel part of MY new family and connected to ME and not feel like she is an ‘outsider in her family.’ ”  Mother argued that teachers find it “a lot easier to know ‘who belongs to whom’ when parents share the same last name [as their children].”  Hyphenated names, she added, are “very common.”  “If presented to [Claire] in the right manner, a hyphenated name could make her feel special.

Dad opposed the name change.  He argued:

[S]ince Claire resides with Mother for more than half of each year she “will have no issues identifying with her mother.”  Father emphasized the importance of his surname in maintaining the father-daughter bond, especially in light of Mother’s efforts “to alienate, or distance, [him] from his daughter.”  “I do not believe Mother will use the hyphenated version of Claire’s name if the Court grants Mother’s request.  I firmly believe that Mother will drop the Sugrue from the hyphenation at every opportunity.  McMullen-Sugrue is an extremely long last name for a young child and it is likely that Mother will allow teachers and daycare providers to refer to Claire and teach her to write her name as Claire McMullen.  Since the separation, and prior to filing her motion to change Claire’s name, Mother repeatedly gave Claire’s name to third-parties [sic] as Claire McMullen.”  Demonstrative evidence supporting Father’s position included a photocopy of Claire’s sandal, which was marked with the initials “CMC,” and a photograph of an “Our Families” display at Claire’s preschool, which made no mention of him. 

Father also argued that it would be in Claire’s best interest to have the same surname as her future Sugrue siblings “to help create unity and a cohesive bond.”  Noting that he was engaged to be married and intended to have more children with his second wife, Father pointed out that if Claire’s surname were changed to “McMullen-Sugrue” or “Sugrue-McMullen,” she would share that name with no one.  As a compromise, Father said he would not oppose changing Claire’s middle name from “Kristine” to “McMullen.”

The trial court denied the name change request.  That decision was upheld by the Appellate Court in an unpublished opinion.  It turns out there is quite a bit of law and analysis behind the decision.

In In re Marriage of Schiffman (1980) 28 Cal.3d 640 (Schiffman), the California Supreme Court listed a number of factors to be considered by a court determining whether a surname change is in a child’s best interest.  (Schiffman, at p. 647.)  Mother claims “[t]here is no evidence the court considered any of those factors in articulating its decision,” and therefore, reversal is required.  We disagree.

“[A]s in custody disputes, quarrels concerning a child’s surname should be decided according to the best interests of the child.”  (Schiffman, supra, 28 Cal.3d at p. 642; Code Civ. Proc., § 1278.5 [codifying Schiffman].)  “[T]he question of what is in the ‘child’s best interests’ is one of fact.”  (In re Marriage of Douglass (1988) 205 Cal.App.3d 1046, 1054 (Douglass).)  Factors to be considered include the length of time that the child has used a surname, the effect of a name change on preservation of the father-child relationship, and identification of the child as part of a family unit.  (Schiffman, at p. 647.)  “ ‘[The] embarrassment or discomfort that a child may experience when he bears a surname different from the rest of his family’ should be evaluated.  [Citation.]”  (Ibid.)  “ ‘[T]he maternal surname might play a significant role in supporting the mother-child relationship . . . in the cases where the father is the custodial parent or where the custodial mother goes by her birth-given surname.’  [Citation.]”  (Ibid.)

Name changes are reviewed under the substantial evidence standard.

A trial court’s decision granting or denying a motion to change a child’s surname will be sustained so long as it is supported by substantial evidence.  (In re Marriage of McManamy & Templeton (1993) 14 Cal.App.4th 607, 610 (McManamy).)  Under the substantial evidence standard, all conflicts in the evidence must be resolved in favor of the respondent and all legitimate and reasonable inferences indulged to uphold the lower court’s decision.  (Douglass, supra, 205 Cal.App.3d 1046, 1055.)  “ ‘When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court.  [Citations.]’ ”  (Douglass, at p. 1055; McManamy, at p. 610.)  The burden is on the party challenging the trial court’s order to establish that the order is not supported by substantial evidence.  (Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1011.)

Here, there was substantial evidence to support the trial court’s implied finding that it would not be in Claire’s best interest to change her surname.  The trial court could reasonably have balanced the first factor against the proposed change.  (Schiffman, supra, 28 Cal.3d at p. 647.)  The child was almost four at the time of the hearing.  While she had not yet started kindergarten, she was in her second year of preschool and, as Mother acknowledged, doing well there with her current name.  In our view, the trial court could also have interpreted Mother’s statement that “[i]f presented to [Claire] in the right manner, a hyphenated name could make her feel special” as an implied admission that the child would not necessarily embrace a name change.  (Italics added.) 

The trial court could reasonably have balanced the familial bond factors against the proposed name change as well.  (Schiffman, supra, 28 Cal.3d at p. 647.)  There was no evidence, beyond Mother’s preference, that a hyphenated surname was needed to strengthen the mother-daughter bond.  On the other hand, there was considerable evidence supporting Father’s concern that Mother may have been subtly trying “to alienate, or distance, [him] from his daughter,” and that, if Claire’s surname were changed to a hyphenated one, Mother would continue to “drop the Sugrue from the hyphenation at every opportunity.”  Mother freely conceded that she had “at times” called her daughter “Claire McMullen,” and she did not dispute that materials Claire contributed to various classroom displays did not depict or refer to Father.  Additionally, Father presented evidence that although he lives only five miles away from Claire’s preschool, Mother did not list him as an emergency contact but instead listed relatives who reside in El Dorado Hills, 150 miles away.  The trial court could reasonably have concluded from this evidence that the importance of preserving the father-daughter bond mitigated against the proposed name change.  We conclude that since substantial evidence supported the trial court’s implied finding that it was not in Claire’s best interest to change her surname, the trial court did not err when it denied Mother’s motion.

Please click here for the original opinion.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

 

Talking and Interacting With The Kids After Divorce

With divorce there will be changes in your life, and the lives of your children.  How do you help the kids to deal with that change? What should you tell the kids?  These are always challenging questions.  Brette Sember tries to answer the question with some helpful tips in an article entitled "Helping Kids Deal With Change After Divorce."

For example, Sembler offers:

Many people find themselves reevaluating just about everything in their lives after divorce and this may mean you decide to change some of your household rules. You might institute a family game night, decide cell phones aren't allowed at the table, create a chore list for everyone, schedule family dinners one night a week, or make changes in the amount of TV time that's allowed. Whatever you decide to institute, do it slowly, one thing at a time, so that it doesn't feel like a sea change all at once.

Click here for the entire article.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.