Justia Family Law Opinion Summaries

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The Court of Appeal reversed a restraining order issued against defendant under the Domestic Violence Prevention Act (DVPA). The court agreed with defendant that the trial court's finding that she disturbed the peace was not supported by substantial evidence. In this case, the single, private Facebook post accusing plaintiff of abusing her, was insufficient to support the issuance of a domestic violence restraining order. The court also held that the remaining allegations do not support issuance of the restraining order because the trial court improperly shifted the burden of proof to defendant. Finally, the trial court abused its discretion when it extended the restraining order for an additional year. View "Curcio v. Pels" on Justia Law

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The maternal grandparents of C.P. argued that the absolute statutory bar to placement of the child in their custody, either through approval as a resource family pursuant to Welfare and Institutions Code section 16519.5 or on an emergency basis pursuant to section 361.4, was unconstitutional as applied to them. The bar was triggered in this case by a disqualifying misdemeanor criminal conviction the grandfather had dating to 1991. The child (born 2011) was removed from mother’s custody in May 2017, after he was sexually abused by a maternal uncle; at the time of removal, mother, child, and uncle all resided in the home of the grandparents. The uncle is now incarcerated on a 20-year sentence for child molestation. Mother has been out of contact with CFS, and reportedly has moved out of state. The child was initially placed with a foster family, but in June 2017 he was moved to a group home capable of addressing his special health care needs related to autism. Mother failed to reunify with the child. The child was ordered to remain in the group home under a planned permanent living arrangement, with the goal of identifying an appropriate placement for legal guardianship. The grandparents started the resource family approval process, with the goal of having the child placed in their care, almost immediately after the child was removed from mother’s custody in May 2017. A social worker characterized grandparents as the “only constant” in the child’s life. The Court of Appeal agreed with grandparents that the absolute statutory bar to placement of the child in their custody would have been unconstitutional as to them if they could establish they had a parental relationship with the child, not just a grandparental relationship. The case was therefore remanded to the trial court to make the predicate factual findings and for consideration of the issue anew from that perspective. View "In re C.P." on Justia Law

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The Supreme Court reversed the final order of the circuit court affirming the family court's order denying Mother's motion to relocate to Myrtle Beach, South Carolina with her two children and designating Father as the children's primary residential parent, holding that not only did the family court erroneously rely upon a single factor in its analysis of the children's best interests, but its conclusion as to that factor was not supported by the record. The family court denied Mother's motion to relocate the children to Myrtle Beach, designated Father as the primary residential parent, and adjusted child support obligations accordingly. On appeal, Mother argued that the family court failed to conduct a proper analysis of the children's best interests for purposes of determining where they should reside following her relocation. The Supreme Court agreed, holding that the family court's order contained insufficient findings of fact and conclusions of law to support its determination that it was in the best interests of the children to reside primarily with Father and that the family court should have undertaken an assessment of the custodial responsibility each parent was undertaking to determine which statutory principle to apply under W. Va. 48-9-403(d). View "Stacey J. v. Henry A." on Justia Law

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The Supreme Court reversed the decision of the court of appeals reversing a portion of an order of the family court that modified the parties' timesharing arrangement and recalculated child support, holding that the court of appeals erred. The family court issued an order modifying the parties' timesharing arrangement and holiday schedule and recalculating child support. The court of appeals affirmed the modification of the holiday scheduled but otherwise reversed. The Supreme Court reversed the decision of the court of appeals as to the issues before the Court, holding (1) the court of appeals incorrectly interpreted and applied Ky. Rev. Stat. 403.270 and Ky. Rev. Stat. 403.320; (2) the family court did not err in modifying the timesharing schedule; and (3) the family court did not err in calculating child support based on the parties' stated salaries and in declining to impute income to Wife for gifts received from her parents. View "Layman v. Bohanon" on Justia Law

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The Court of Appeal reversed the trial court's order denying plaintiff's petition for a domestic violence protective order pursuant to Family Code section 6200 et seq., the Domestic Violence Prevention Act. The court held that the trial court abused its discretion in denying plaintiff's request for a continuance of the hearing where the basis for the trial court's denial was unclear; to the extent the trial court denied the request because plaintiff did not serve defendant with notice of either the request for a protective order or the request for a continuance before the January 29, 2019, hearing, section 245 does not require any such prior service; and plaintiff demonstrated good cause for a continuance of at least a few days. Finally, the court need not address plaintiff's remaining arguments concerning the trial court's denial of the request for a protective order. View "J.M. v. W.T." on Justia Law

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The Supreme Court affirmed the order of the district court terminating Mother's parental rights to her son, holding that the district court did not err in terminating Mother's parental rights. In terminating Mother's parental rights, the district court concluded that Mother's conduct was unlikely to change within a reasonable time and found that termination of Mother's parental rights, rather than a guardianship, was in the best interests of the child. The Supreme Court affirmed, holding that the district court (1) did not err when it determine that Mother's condition or conduct rendering her unfit to parent was unlikely to change within a reasonable time; and (2) did not abuse its discretion when it determined that termination was in the child's best interests and that Mother did not overcome the presumption in favor of termination. View "In re A.B." on Justia Law

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M.J. (Mother) appeals the order entered following the jurisdiction and disposition hearing in the juvenile dependency case of her minor child, D.S. D.S. was living with his paternal aunt (Aunt), later determined to be his presumed mother. The Agency alleged D.S.'s father was deceased, Mother had previously caused the death of another minor, and Aunt was no longer able to care for D.S. As discussed in the detention report, Mother's parental rights were terminated after she was charged and convicted of killing D.S.'s brother. D.S. had been placed in the care of his father, who subsequently died suddenly in March 2018. Aunt assumed care for D.S., but reported to the Agency that she could not currently care for D.S. due to her own health issues. In a report prepared for the jurisdiction and disposition hearing, the Agency detailed its inquiry into whether the Indian Child Welfare Act applied to the proceedings. The Agency stated: (1) Mother denied having any Indian heritage; (2) D.S.'s great-grandmother stated that her great-grandmother (D.S.'s great-great-great-great-grandmother) was "affiliated with the Sioux and Blackfeet tribes;" (3) Aunt denied that she or [her grandmother] have ever lived on an Indian reservation, have a tribal enrollment number or identification card indicating membership/citizenship in an Indian tribe; and (4) Aunt denied she has any reason to believe D.S. was an Indian child. Mother contended the court erred by not complying with the inquiry provisions of the Indian Child Welfare Act. The Court of Appeal concluded after review that the juvenile court's finding that the Agency completed its further inquiry was supported by the evidence. Similarly, there is substantial evidence supporting the juvenile court's conclusion that "there is no reason to believe or know that [ICWA] applies." View "In re D.S." on Justia Law

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The Supreme Court affirmed the judgment of the district court entering a divorce decree in which it awarded a 160-acre parcel of land to Wife and required Husband to satisfy any unpaid property taxes, holding that the court did not abuse its discretion in its property division and assignment of debt or in considering attorney's fees as a factor in its property division. During much of their marriage, Wife and Husband lived on a 160-acre parcel of land owned by Husband's parents. After Husband's parents deeded the parcel to Husband, Wife filed for divorce. The district court awarded the property to Wife and required Husband to satisfy any unpaid property taxes. The Court noted that Wife's requests for an award of attorney's fees during the proceedings were considered in arriving at its division of property. The Supreme Court affirmed, holding that the district court did not abuse its discretion in the disposition of property or in its consideration of attorney's fees. View "Malli v. Malli" on Justia Law

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This proceeding concerned three children, ages seven, four, and two. Their parents had an extensive history of drug abuse, treatments, and relapses. After one such relapse in 2018, after a hypodermic needle was found under a sofa cushion in the family home, Orange County Social Services Agency ("SSA") petitioned to take the children into protective custody.Both mother and father consistently drug tested over the protracted course of the jurisdictional/dispositional hearing, which did not finish up until late July 2019, ten months after the children were removed. Welfare and Institutions Code section 361.5 (b)(13), allowed a court to bypass reunification services to parents if they had “a history of extensive, abusive, and chronic use of drugs or alcohol and [have] resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition . . . .” This appeal concerned the meaning of the word “resist.” The parents in this case indisputably had the sort of history that satisfied the first condition of subdivision (b)(13). They contended, however, and the court found, that they had not resisted a court-ordered treatment program: they simply relapsed. SSA and the children appealed, contending that the parents’ extensive history of relapses irrefutably demonstrated so-called passive resistance. The Court of Appeal found it was "compelled" to break with the line of cases that interpreted subdivision (b)(13) as encompassing passive resistance, where passive resistance simply means relapse. "The bypass provision was intended for parents who refuse to participate meaningfully in a court-ordered drug treatment program, not parents who slip up on their road to recovery." The Court determined the parents her did not "resist" treatment; thus the trial court correctly offered them reunification services. View "In re B.E." on Justia Law

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The Supreme Court reversed the final order of the circuit court upholding the decision of the family court to deny Father's petition for modification of custodial responsibility, holding that the lower courts erred in failing to perform the required best interest analysis and in failing to provide specific findings with respect to the best interest of the parties' child. In his petition, which was based on the allocation of decision-making responsibilities under W. Va. Code 48-9-20, Father sought an order awarding him sole decision-making responsibility pertaining to medical and educational matters for the child. The family court denied the petition and ordered joint decision-making responsibility. The circuit court upheld the order. The Supreme Court reversed, holding (1) the lower courts used the wrong standard when denying Father's petition for allocation of decision-making responsibility; and (2) the lower courts erroneously failed to perform the requisite analysis of the child's best interests and failed to provide specific findings with respect to the child's best interest. View "Benton B. v. Cassidy T." on Justia Law