In a decision issued August 4, 2010, Vaughn Walker, Chief Judge of the United States District Court for the Northern District of California, ruled that Proposition 8, which defines marriage as strictly between a man and a woman, is unconstitutional as violative of both the Due Process and Equal Protection Clauses. Proposition 8 was passed by a narrow majority of voters in November 2008 and has been in litigation ever since.

According to Walker, the 18,000 gay marriages granted between June 16, 2008 and November 5, 2008 (the brief window during which same-sex marriages were legal) have not and do not pose any public harm. Walker ordered an entry of judgment permanently enjoining enforcement of Proposition 8. However, Walker also ordered a temporary stay of execution of that judgment pending the anticipated appeals to higher courts, perhaps all the way to the Supreme Court.

Both current governor, Arnorld Schwarzenegger, and former governor and current gubernatorial candidate, Jerry Brown, delivered letters to the Chief Judge on August 7, 2010, opposing the stay. “The Administration believes the public interest is best served by permitting the court’s judgment to go into effect, thereby restoring the right of same-sex couples to marry in California,” Schwarzenegger wrote in his letter.

IN RE: the MARRIAGE OF XIA GUO AND XIAO HUA SUN, No. B215595.

In a July 28, 2010 decision, the 3rd California Court of appeal denied the petition of Xiao Hua Sun to appeal the 2008 decision of the Los Angeles County Superior Court which denied Sun’s request for a finding of putative spouse status.

California Family Code Section 2251 outlines “putative spouse” status, preserving community property rights for someone “if a determination is made that a marriage is void or voidable and the court finds that either party or both parties believed in good faith that the marriage was valid…” In Xiao Hua Sun vs. Xia Guo, the Los Angeles-residing couple had been married on Feb. 14, 2001 in Las Vegas. However, Sun was, at the time, already married to a woman in Italy. Guo believed, on the representation of Sun, that Sun had divorced his wife prior to Feb. 14, 2001. In fact, Guo did not file for divorce until Feb. 15, 2001, and judgment was not entered until August 21, 2001. In 2008, Guo filed a petition for nullity which was granted on August 15, 2010. Sun then sought to be declared a putative spouse on the grounds that Guo had a good faith belief in the validity of the marriage, even if Sun didn’t. The L.A. Superior Court denied Sun’s request on December 28, 2008. Sun then appealed to CA-3.

In 2009, the 6th California Court of Appeals ruled, in Tejeda (2009) 179 Cal.App.4th 973, that section 2251 must be applied “without regard to guilt or innocence, when the court makes the predicate findings that (1) the marriage is void or voidable, and (2) at least one party to the union maintained a good faith belief in the validity of the marriage.” This language would seem to support Sun’s request. However, it should be noted that, in Tejeda, the court permitted an innocent spouse to assert a putative spouse status. By contrast, Sun clearly is not an innocent party.

In its decision, CA-3 deliberately repudiated (or perhaps clarified) Tejeda, stating that “the purpose of section 2251 is to protect innocent parties of an invalid marriage from losing community property rights… If Tejeda were correct, then a party who fraudulently and in bad faith conceals his or her bigamy can reap the benefits of putative spouse status even when his or her innocent spouse does not contend that there was a putative marriage. This result is inconsistent with the equitable principles underlying 2251. We thus hold that a party who seeks to be a putative spouse must have an objective good faith belief in the validity of the marriage.”

Full transcript of the Court’s decision can be found here.

Karla Cecelia Escobar v. Cesar Flores, C061316

In an April 7, 2010 decision, CA-3 affirmed a Mono County Court decision to reject a mother’s petition to compel her 8-year-old son’s return to his native Chile under the rules of the 1980 Hague Convention based on the boy’s clearly stated preference to remain in the United States.

Born in 2000, Cesar Flores resided in Mono County, CA for the first 4 years of his life. His unmarried parents agreed to let Cesar take an extended vacation with his mother in her native Chile in 2004, but the mother decided that neither she nor Cesar would be returning. A Chilean Court granted the mother custody, and for the next 4 years, Cesar lived in Chile with his mother and her family.

In 2008, Cesar was sent by his mother back to Mono County to visit his mother’s sister. Upon learning of this, Cesar’s father filed a petition to establish parentage and was awarded temporary custody. Cesar’s mother immediately filed a petition under the Hague Convention (adopted 1980 to prevent the unilateral retention of children across national borders). Cesar’s father responded that, according to a clause under Article 13 of the Convention, the judicial authority may “refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.”

Cesar did not want to go back to Chile. He told the Court he only had one friend and no room, bed or television of his own. He liked being with his father more than with his mother. Cesar said he felt good in America, not in Chile. The Court determined Cesar was not under undue influence when he told the Court his preference of residence and custodial parent. Moreover, the Court determined Cesar possessed a sufficient degree of maturity to express that preference. The Mono County Superior Court thus rejected the mother’s petition and rendered a Statement of Decision on March 5, 2009.

Cesar’s mother appealed the decision and argued that the appellate court’s review would ultimately be de novo, reviewing all the evidence to determine whether or not Cesar was mature enough to express his preference. Cesar’s father responded that the Appellate Court’s role was only to determine if the lower Court had made an error in determining Cesar’s maturity.

The CA-3 Appellate Court determined that it would be inappropriate to do a de novo review as it only had Cesar’s transcript before it and not a living, breathing child whose nuance and body language might convey maturity where unadorned words would not. In reviewing other cases, the Court determined that an 8-year-old child is not too young to display the sufficient degree of maturity required under the Hague Convention, and upon reviewing the case transcript, further determined it could “not say the inferences the trial court drew were unreasonable, and this precludes us from overturning the court’s determination.” The Appellate Court cited Muzquiz v. City of Emeryville (2000) 79 Cal.App.4th 1106, 1122: “Where two or more different inferences can reasonably be drawn from the evidence, this court is without power to substitute its own inferences for those of the trial court and decide the case accordingly.”

Full transcript of the Court’s decision can be found here.

In 2005, self-represented Contra Costa county resident, Jeffrey Elkins, was barred by local rules from testifying in his own divorce case. The rule was supposed to expedite hearings by keeping lengthy testimony out of the Court room. The result was a crushing judgment which left Elkins with virtually nothing.

Elkins appealed the decision, and in the landmark 2007 Elkins v. Superior Court (Elkins) (2007) case, Chief Justice Ronald George lambasted the Contra Costa local rules, and by extension, the California Family Court system as a whole:

“[Judges] must abide by the guiding principle of deciding cases on their merits rather than on procedural deficiencies. Such decisions must be made in an atmosphere of substantial justice…The strong public policy favoring disposition on the merits outweighs the competing policy favoring judicial efficiency.”

The result was the Elkins Family Law Task Force, appointed in May 2008 to conduct a full review of family law proceedings. The Task Force concluded work on April 23, 2010, presenting a 113 page report containing 21 main recommendations and 117 specific recommendations to the Judicial Council of California calling for sweeping changes to the system.

“California’s family courts are struggling with enormous caseloads, complex legal issues, and increasing numbers of self-represented litigants,” Judicial Council chair Chief Justice Ronald M. George stated. “I am pleased that the Elkins Family Law Task Force has developed comprehensive
recommendations to provide greater access to justice, improve processes and procedures, and address the critical resource needs of these important courts.”

The entire report can be found here.

K.C. v The Superior Court of Trinity Country, C063449

Trinity County mother, K.C., failed to obtain an extraordinary writ to vacate the orders of the Trinity County Juvenile Court denying reunification services and setting the date for a Welfare and Institutions Code section 366.26 hearing when the CA 3rd Appellate Court denied her petition. The decision was filed March 18, 2010.

K.C. had a history of severe nicotine addiction and abuse, and the child’s father was a convicted sex offender. K.C. also continued smoking throughout her pregnancy despite being counseled not to. In fact, a previous half-sibling, born in 2003, suffered at birth from complications due to withdrawal from caffeine and nicotine had been removed from K.C.’s custody in 2005. The child born in 2009 also tested positive for nicotine. Ultimately, this child was removed from K.C.’s custody in September 2009 as K.C. was deemed a neglect risk and the father an abuse risk.

K.C. argued the court abused its discretion in denying her services, maintaining that she had made reasonable efforts to treat the conditions leading to the removal of the child–reducing the number of cigarettes smoked per day and smoking only “organic tobacco.” Under Welfare and Institutions Code § 361.5, subd. (a), When a child is removed from parental custody, the juvenile court must order reunification services to assist the parents in reuniting with the child. However, under the provisions of § 361.5, subd. (b), reunification services need not be provided under several circumstances, the relevant clauses cited in this case being (10) where a parent has had reunification services terminated for failing to treat the problems leading to removal and (11) where parental rights have been permanently severed for the above reasons.

The appellate court determined that K.C.’s efforts had not been reasonable, that her nicotine addiction posed a clear danger to the child, and her failure to acknowledge the danger posed by the child’s father all made the lower court’s decision justified. The appellate court thus denied K.C.’s petition, ruling that the juvenile court had not abused its discretion.

Transcript of the court’s decision can be found here.

The historic 1502 6th Avenue building in San Diego, formerly Obama campaign headquarters, has now become the downtown office for the AAA Legal Relief Clinic: the all-in-one, do-it-yourself resource that helps you be the best pro per possible. Just across the street from the 6th Avenue family law courthouse, the Clinic offers a wide variety of services. Its friendly and knowledgeable staff help you with document preparation and service. The Clinic’s comfortable offices are equipped with fax machines, fast printers, heavy-duty copiers and internet-accessible modern computers. And for those matters that turn out to be too much for one person to handle, an MFLC attorney is never more than a call away.

For more information, contact (619) 704-2604 or just stop by. The Clinic is open Monday through Friday from 7:30 a.m. to 5:00 p.m.

Proposition 8, the constitutional amendment passed into law by the majority of California voters in November 5, 2008, provides that “Only marriage between a man and a woman is valid or recognized in California.”

But on October 12, Governor Arnold Schwarzenegger signed into law SB 54 which states that while California’s constitution remains unchanged, California courts will recognize out-of-state same-sex marriages which contracted prior to the passing of Proposition 8.

The new law does not recognize out-of-state same-sex marriages contracted after November 5, 2008, but it does provide that parties contracted in out of state same-sex marriages would be afforded the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, as specified, as are granted to and imposed upon spouse with the sole exception of the designation of “marriage”.

A legal challenge to constitutionality of Proposition 8 goes before the Supreme Court early next year.

The text of the new law can be found here.

California Rules of Profession Conduct rule 1-650, operative 8/28/29, says that an attorney who provides short-term limited legal services under the auspices of a program sponsored by a court, government agency, bar association, law school or nonprofit organization is subject to rule 3-310 (which prohibits representing multiple parties whose interests are mutually adverse) only if the member knows that the representation of the client involves a conflict of interest or if the member knows that another lawyer associated with the member in a law firm would have a conflict of interest with respect to the matter.  If, after commencing a short-term limited representation in accordance with rule 1-650, a member undertakes to represent the client in the matter on an ongoing basis, rule 3-310 and all other rules become applicable.

According to the State Bar of California Website:

“Courts, government agencies, bar associations, law schools and various nonprofit organizations have established programs through which lawyers provide short-term limited legal services - such as advice or the completion of legal forms that will assist persons in addressing their legal problems without further representation by a lawyer. In these programs…there is no expectation that the lawyer’s representation of the client will continue beyond that limited consultation. Such programs are normally operated under circumstances in which it is not feasible for a lawyer to systematically screen for conflicts of interest as is generally required before undertaking a representation.

“A member who provides short-term limited legal services pursuant to rule 1-650 must secure the client’s informed consent to the limited scope of the representation. If a short-term limited representation would not be reasonable under the circumstances, the member may offer advice to the client but must also advise the client of the need for further assistance of counsel.”

More information on this new rule can be found at the California State Bar Rules page.

Karen Victoria Dahlberg Wynn v. The Superior Court of Fresno County, F056975

Karen Victoria Dahlberg Wynn won an appeal, 08/04/09, to correct her original birth certificate to state the actual names of her birth parents rather than the fictitious names her mother used when the original certificate was prepared.

Karen was the result of an unplanned pregnancy in 1949. Karen’s mother, an enrolled member of an Indian tribe, hid the pregnancy from her family and community . She falsified her name and the name of the father on the birth certificate. In 1951, she gave Karen up for adoption. She was adopted by the Dahlberg family and a new certificate of live birth was issued listing Karen as their daughter. The old certificate was sealed as part of the adoption process.

In 1981, Karen obtained the release of her adoption file, which revealed the true names of her biological parents. She also obtained an order from the Fresno Superior Court unsealing her birth record. In 2001, Karen contacted her biological mother and established an ongoing relationship. Karen wanted to join her mother’s tribe but was told by the tribe’s enrollment office that they needed an amended version of her original birth record that changes the name of her natural mother from the fictitious name to the correct name one. Karen filed a motion to have her certificate changed and have Karen’s biological mother be recognized as such.

The matter was heard by the superior court on December 8, 2008. The superior court denied the petition, stating that the court’s jurisdiction was limited and it did not think it “appropriate for the Court to correct an original birth certificate when that is meaningless for legal purposes, for the Court’s purposes, because her new birth certificate [from the adoption] establishes who  her legal parents are and I’ve never had a situation where anyone [has] asked to fix a  birth certificate that no longer has any force and effect in terms of legal status of parent and child.”

Fifth Court of Appeal reversed this decision. The Court determined that current statute did not allow Karen to change the names on her original birth certificate–only that minor clerical changes could be made. But the crux of the case was whether any kind of legal relationship could exist between biological mother and child after child has been adopted. In this case, the Indian tribe membership was the legal tie, and the Court determined that it had the right to adjudicate on the issue of a biological mother-child relationship.

The Court also found that it had the authority and duty to change Karen’s certificate according to one of the provisions in part 3(Uniform Parentage Act) of division 12 (Parent and Child Relationship) of the Family Code applicable to the father and child relationship is section 7639, which states:

“If the judgment or order of the court is at variance with the child’s birth
certificate, the court shall order that a new birth certificate be issued as
prescribed in Article 2 (commencing with Section 102725) of Chapter 5 of
Part 1 of Division 102 of the Health and Safety Code.”

The matter was remanded to the superior court to adjudicate the facts of Karen’s parentage and, if appropriate, order the issuance of a new birth certificate to correct appellant’s original birth certificate.

The full text of the court’s decision can be found here.

With the signature of Governor Schwarzenegger, AB 706 took effect as urgency legislation on 8/5/09.  It adds §361.49 to the Welfare and Institutions Code providing that:

Regardless of his or her age, a child shall be deemed to
have entered foster care on the earlier of the date of the
jurisdictional hearing held pursuant to Section 356 or the date that
is 60 days after the date on which the child was initially removed
from the physical custody of his or her parent or guardian.

AB 706 also amends W&I C §361.5 providing that court-ordered services for children three and older shall end 12 months after the child entered foster care.  The bill also limits the duration of services provided where a child is under three and makes changes to requirements for filing motions to terminate services.

Full text of the bill can be found here