On April 4, 2008, the Second Appellate District reversed a Findings and Order granting a Petition by a child’s biological father seeking that he was the child’s presumed father stating that:

. . . a biological father seeking reunification with a child, who does not come forward in the dependency proceeding until after the reunification period has ended, must establish under section 388 that there are changed circumstances or new evidence demonstrating the child’s best interest would be promoted by reunification services. The rule is the same whether his paternity was concealed from him or not. (Full text of 04/08/2008 Opinion.)

In re: Vincent M. the child was born in February, 2006 after Petitioner had moved to New York without mother to attempt to gain custody of a child from a previous relationship. Mother had originally told another man that he was the father and had not informed the Petitioner in this case that she was pregnant. At the child’s birth, Mother told the other man that the child had died, surrendered the child to the hospital, and refused to identify the father. The child was placed with prospective adoptive parents and on 03/08/06, the junior court found that the whereabouts of Mother and identity of the Father of the child were unknown, declared the child a court dependent, and moved to the permanency stage of the dependency action.

In September, 2006 a new paternity test revealed that the other man was not the father and Mother contacted the Petitioner to inform him that he was. In October, 2006 Petitioner took a paternity test and was determined to be the biological father of the child. Petitioner then filed his Petition seeking a Declaration that he was the child’s presumed father, and thus entitled to reunification services with the child, despite the time period for such services having expired.

The Second Appellate District found that father did not meet the definition of presumed father status under Civil Code section 7004, subdivision (a) and stated that presumed father status is not related to biology. In discussion of the decision, the court stated, “For a biological father who does not assert paternity until after the expiration of any reunification period, the ‘only remedy’ is to file a petition to modify under section 388″ which requires a showing of new evidence or changed circumstances showing that reunification services or granting custody to the biological parent would be the best interests of the child. As the lower court did not consider the best interests standard, the Findings and Order was reversed and father was directed that he may file another Petition for which the court would have to consider the current status and best interests of the child in making its ruling.

Parents and prospective adoptive parents can find more information about a biological parent’s right to reunification services under California law at adoption.com.

On April 8, 2008 the Fourth District Appellate court provided direction on which standard to apply in cases seeking a change in parenting and visitation post Judgment.

In re Marriage of Lucio, the Judgment of Dissolution from 2004 awarded both parents joint legal custody and granted sole physical custody to Mother with monitored visitation to Father. In April, 2006, Father filed an Order to Show Cause seeking joint physical custody of the children. The trial court denied Father’s Order to Show Cause, and prior to the order on the first Order to Show Cause being entered, Father filed a second Order to Show Cause requesting a modification to the parenting plan with no monitored visits. Father filed supporting Declarations which spoke to the concerns regarding the Penal Code violations (which had led to initiating monitored visitation), but the trial court ruled that Father had failed to allege a change of circumstance since the denial of the first Order to Show Cause and therefore dismissed the second Order to Show Cause.

The Appellate court reversed the lower court’s decision to apply the changed-circumstances standard and directed the court to reconsider the Father’s Order to Show Cause under the best-interests standard, summarizing its reasoning as follows:

Under the changed circumstance rule, after the trial court has entered a final or permanent custody order reflecting that a particular custodial arrangement is in the best interest of the child, custody modification is appropriate only if the parent seeking modification demonstrates “‘a significant change of circumstances’ indicating that a different custody arrangement would be in the child’s best interest.” (In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 956.) But the changed circumstance rule does not apply when a parent requests only a change in the parenting or visitation arrangement not amounting to a change from joint custody to sole custody, or vice versa. Instead, the trial court considers a request to change the parenting or visitation arrangement under the best interests of the child standard. (Full text of 04/08/2008 Opinion.)

The Appellate court stated that the Father’s requested changes to the visitation schedule did not create a de facto change in custody and would not disrupt the children’s established patterns of care and emotional bonds with Mother or destabilize the sole physical custody arrangement.

The court relied on a number of previous cases, including Enrique M. v. Angelina V. (2004) , In re Marriage of Birnbaum (1989), In re Marriage of Burgess (1996), and Niko v. Foreman (2006) continuing the pattern of distinguishing a request for change of custody from a request to modify the visitation schedule or co-parenting arrangements.

Due to persistent requests for consulting services, Marcus Family Law Center, PLC is pleased to announce that it will offer two new services out of the San Diego office.

Extended Consultations - Available only in San Diego

The extended paid consultation is designed for clients who want to represent themselves in court but also want easy access to legal advice. A client that retains the San Diego office for this service will have the security of being able to obtain a legal opinion from someone they can establish a relationship with. Clients will meet directly with the attorneys, who will use client presented information to provide legal options and advice.

Ghostwriting Services - Available only in San Diego

Ghostwriting services are available to self-represented clients to provide document preparation in combination with extended consultation. The ghostwriting services are ideal for hands-on clients who want the convenience of having a trained Legal Assistant prepare their documents in addition to the assurance gained by receiving attorney guidance, while still maintaining the ability to represent themselves in court. Ghostwriting gives self-represented clients both time-saving assistance and the confidence to present their case themselves.

Paralegal Services

Previously available only through the El Centro office, the San Diego office will now offer document preparation services through its partnership with AAA Legal Relief Clinic. A wide variety of documents can be prepared for the client in their Family Law case or other civil action. Having an experienced document preparer to guide the client through the process of gathering necessary information and organizing it according to the court’s guidelines can save clients the time and headache of filling out their forms themselves.

On February 28, 2008 the Second Appellate District granted a petition for extraordinary writ which reversed the lower court’s decision refusing to order parents to enroll their children to attend public or private school. The lower court found that parents have a constitutional right to homeschool their children, while the Second Appellate District reversal stated:

It is clear to us that enrollment and attendance in a public full-time day school is required by California law for minor children unless (1) the child is enrolled in a private full-time day school and actually attends that private school, (2) the child is tutored by a person holding a valid state teaching credential for the grade being taught, or (3) one of the other few statutory exemptions to compulsory public school attendance (Ed. Code, § 48220 et seq.) applies to the child. In re Rachel L. (Full text of 02/28/08 disposition)

The decision received mainstream media attention. The Los Angeles Times reported apprehension among current homeschooling families fearing prosecution under the new ruling and the San Francisco Chronicle reported on Governor Schwarzenegger’s pledge to intervene if the rights of parents to homeschool their children were challenged.

On March 25, 2008 the Second Appellate District granted the petition for rehearing filed by the parents In re Rachel L. and allowed for submission of an amicus curie brief by the school through which the parents had operated their homeschooling program. The brief shall address whether parents have the right to homeschool their children and whether California law permits homeschooling by non-credentialed parents. The court further announced its intention to hear the matter on its June, 2008 calendar and to solicit amicus briefs on the issues from the California State Superintendent of Public Instruction, California State Board of Education, California Federation of Teachers, California Teachers Association, and United Teachers Los Angeles. The court will also consider timely applications for amicus briefs from other interested parties.

According to the Los Angeles Times, as many as 166,000 homeschooled children will be affected by the court’s eventual decision on this matter.

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