Paternity issue: The first issue to be resolved is whether or not this father is established as a legal father.  Since the mother was unmarried, no paternity presumption applied (§7540).  In CA, he would have had to sign the declaration of voluntary paternity in order to be named on the birth certificate and be a legal father (§7570).  If he did not sign these documents, there would have to be a judgment of his parental rights.

Standing: He would have to establish his paternity somehow in order to have the standing necessary to challenge the adoption.  We can presume there is a paternity judgment in place because there was genetic testing and that found he was the biological father which would result in a judgment.

In order for this child to be adopted, the parental status of both parents would have to be terminated.  His were not terminated, so it is questionable how this issue could proceed to an adoption judgment—the facts don’t say, but we assume that the adoption is not in place yet.

Adoption:

- Adoption procedure statutes:

• Fam Code §7666: notice of the proceeding shall be given to
  every person identified as the natural father or a possible natural father
  in accordance with the Code of Civil Procedure for the service of process
  in a civil action in this state at least 10 days before the date stated
  in the notice of the proceeding, except that publication or posting of the
  notice of the proceeding is not required. Proof of giving the notice shall
  be filed with the court before the petition is heard
• Fam Code §7664: (b) If the natural father or a man representing
  himself to be the natural father claims parental rights, the court shall
  determine if he is the father. The court shall then determine if it is in
  the best interest of the child that the father retain his parental rights,
  or that an adoption of the child be allowed to proceed. The court, in making
  that determination, may consider all relevant evidence, including the efforts
  made by the father to obtain custody, the age and prior placement of the
  child, and the effects of a change of placement on the child. If the court
  finds that it is in the best interest of the child that the father should
  be allowed to retain his parental rights, it shall order that his consent
  is necessary for an adoption. If the court finds that the man claiming parental
  rights is not the father, or that if he is the father it is in the child’s
  best interest that an adoption be allowed to proceed, it shall order that
  that person’s consent is not required for an adoption. This finding terminates
  all parental rights and responsibilities with respect to the child. Fam.
  Code §3041 does not apply to a proceeding under this chapter.

- Adoption of Michael H. (1995) 10 Cal.4th
1043, 43 Cal.Rptr.2d 445, 898 P.2d 891: unwed father’s failure to commit
to fatherhood during pregnancy negates his right to veto third party adoption.
During pregnancy, parties agree to put child up for adoption, dad was an addict
who tried to kill himself and cleaned up right before birth. Two weeks after
birth he tried to stop the adoption.

• FACTS: In 2/90, 20 yr old (F) and 15 yr old (mother) met and became
  “engaged”, although she would not marry until she graduated high
  school and F quit drinking and using drugs. In 7/90, mother found she was
  pregnant. F suggested abortion, mother would not consider it and they settled
  on adoption. Mother moved to Cal. with grandparents and was introduced to
  aunt’s friends, who wanted to adopt (APs). She and F were researching
  adoption agencies. In 9/90, they began birthing classes, F went with mother
  to buy a few baby things, bought trailer for them to live in. F arranged
  videotape of ultrasound. In 10/90, relationship deteriorated, F had 2 violent
  outbursts involving mother, lost job, and tried to kill himself. In rehab,
  F decided to stop drugs, seek stable life, continue counseling, and not
  give baby up for adoption. He started looking for attorney re custody.
• “[A]n unwed father has no federal constitutional right to withhold
  consent to an at-birth, third party adoption under our decision in Kelsey
  S. … unless he shows that he promptly came forward and demonstrated as
  full a commitment to his parental responsibilities as the biological mother
  allowed and the circumstances permitted within a short time after he learned
  or reasonably should have learned that the biological mother was pregnant
  with his child. [¶] Here the trial court found that [father] learned
  that [mother] was pregnant with his child in early July 1990, that between
  July 1990 and November 1990, ’••it cannot be said••
  that he was fully committed to his parental responsibilities . . . [and]
  he clearly planned with [mother] to give the child up.’ ([Emphasis]
  added.) The court further found that although [father] decided in November
  1990 that ’he did not want his child given up for adoption,’
  he ’continued to speak to [mother] and even [the adoptive parents]
  as though he still agreed with the adoption’ until March 7, 1991,
  some two weeks after Michael was born. In light of these findings, we conclude
  that under Kelsey S. [father] has no constitutional right to withhold his
  consent to Michael’s adoption….” (In re Michael H., supra,
  10 Cal.4th at p. 1060.)

- Adoption of Kelsey S. (1992) 1 Cal.4th 816,
4 Cal.Rptr.2d 615, 823 P.2d 1216: In order to deny a nonpresumed biological
father the opportunity to withhold consent to adoption, there must be clear
and convincing evidence showing his unfitness. This standard is necessary to
protect his equal protection and due process rights.

• FACTS: Mother became pregnant with child (C) by father (F). Mother
  and F not married. F objected to mother’s decision to place C for adoption.
  2 days after birth of C, F filed action to establish parental relationship
  with C and to obtain custody of C. Trial ct. issued restraining order temporarily
  awarding care, custody and control of C to F. Court also stayed adoption
  proceedings and prohibited contact between C and prospective adoptive parents
  (PAP). PAP filed adoption petition under former Civil Code section 226,
  alleging only mother’s consent required because F not presumed father. Trial
  ct. modified order and awarded temporary custody of C to mother. PAP filed
  petition to terminate F’s parental rights under former Civil Code section
  7017. Parties stipulated that F was natural father of C. Trial ct. ruled
  F not “presumed” father within meaning of former Civil Code section
  7004 (a)(4) and found “‘by a bare preponderance’” (Id. at p.823)
  that C’s best interests required termination of F’s parental rights. Court
  of Appeal affirmed. Supreme Ct. reversed
• Note: This case can be reconciled with Lehr v. Robertson (1983) 463 U.S.
  248, 77 L.Ed.2d 614, 103 S.Ct. 2985 in which statute that failed to give
  notice of minor’s adoption to biological father who was not presumed father
  was held constitutional. In Lehr, father could have enrolled in the state’s
  “putative father registry,” which “adequately protected [the
  father's] inchoate interest in establishing a relationship with … [the
  child]….” (Id. at p. 265.)

- Adoption of Alexander M. (2001) 94 Cal.App.4th
430, 114 Cal.Rptr.2d 218: Court must hold a hearing on an adoption petition
regarding termination of parental rights, first taking evidence on whether father’s
consent to adoption is required under Kelsey S. and Michael H.

• FACTS: Child (C) born to married woman following short affair.
  Divorce petition filed in mother’s marriage in 1/97, but no final judgment.
  Mother immediately gave C up for adoption to APs. Few days later, C’s father
  (F) visited mother and she told him about the impending adoption. APs served
  F with notice of alleged paternity and adoption and filed petition for adoption.
  Two weeks later, they filed a petition to terminate F’s parental rights
  and to determine necessity of his consent. F filed petition to establish
  a parental relationship, seeking blood test to determine paternity and,
  if her was father, to obtain custody or visitation. F declared he had agreed
  to pay for mother to have an abortion if she confirmed the child was his,
  but she changed her mind and asked him if he would agree to adoption. F
  said he would not agree to anything until he had medical confirmation he
  was the father.
• Genetic testing established F was C’s biological father. Parties stipulated
  to consolidate the Consent Petition and the Paternity Petition for hearing.
  F’s request for visitation denied, counsel appointed to represent C, and
  matter set for trial.

- Adoption of Arthur M. (2007) 149 Cal.App.4th
704, 57 Cal.Rptr.3d 259: Unwed teen dad had no protected right to stand in the
way of the child’s adoption.

• Facts: High school students had sex once and child (C) conceived.
  According to mother, father (F) wanted her to have an abortion, while she
  wanted to have C and give it up for adoption. She had friends who also testified
  to F’s desire for abortion. F offered no support, financial or otherwise
  and began college. They had no contact but one phone call until after C
  born.
• Mother’s parents (GPs) wanted to adopt C. Their attorney (A1) sent letter
  asking for F’s waiver, as alleged or presumed father. F’s attorney (A2)
  advised A1 that F would not sign waiver. When mother 8 mos pregnant, F filed
  petition seeking to establish his parental relationship with C and obtain
  legal and physical custody. He attested mother had “recently”
  told him of her pregnancy and of her belief he was the father.
• F informed of C’s birth and sought OSC re: child custody, visitation,
  and paternity testing. He attested he had been denied access to C which
  prevented him from establishing a parental relationship.
• GPs filed adoption petition, alleging pregnancy the result of unconsensual
  & forced intercourse and F failed to assume any parental responsibilities.
• Matters consolidated and paternity testing established F was C’s biological
  father. He offered financial assistance to mother, claiming was not notified
  of C’s 12/13 birth until the end of December and was thus unable to communicate
  offer directly to mother.
• Trial ct. denied F’s request for interim visitation and appointed counsel
  for C. In 6/06, in 1st amended petition to determine F’s parental rights
  and consent to the adoption, GPs alleged he was C’s natural father and deleted
  reference to alleged rape.
• F’s testimony contradicted that of mother’s and her witnesses “in
  virtually every aspect of any consequence.” Focal point of Fs argument
  was that he was excused from promptly stepping up to the parental plate
  by circumstances beyond his control. He argued that from late 7/05, few
  days after conversation with mother, and through rest of 2005, continuing
  into 2006, he could not assume the supportive role defined under standards
  of Adoption of Kelsey S. (1992) 1 Cal.4th 816, card ß{CuVi 853.00},
  and Adoption of Michael H. (1995) 10 Cal.4th 1043, card ß{CuVi 883.00},
  because he feared criminal prosecution arising from mother’s rape charges.
  Court of Appeal carefully checked record and “have come up empty-handed,”
  finding ••nothing•• in the record giving rise to
  a reasonable inference that F knew about the rape charges at any time before
  1/06, ••after•• the baby’s birth.
• Trial ct. found F had failed to come forward promptly and assume his
  parental responsibilities. Finding he did not achieve the status of presumed
  father able to veto the adoption under either statutory (Fam. Code §7611)
  or case law (Kelsey S., and Michael H.), court ordered F’s consent to the
  adoption was not necessary, dismissed the paternity action, and allowed
  the adoption proceeding to go forward. F appealed and Court of Appeal affirmed.

Commentary
Stephen B. Ruben

The payment of child support is a clear public policy of California. There is simply no safe harbor when the state DCSS seeks to collect child or spousal support arrears. Many of us in the family law field may have been misguided in thinking that individual retirement accounts (IRAs) and other pension plans are exempt from collection. This clearly was the father’s contention when he sought an exemption and later moved for injunctive relief to quash the collection proceedings. Under Family Code 5103, the levy was proper. More importantly, regardless of whether the children are receiving public assistance or the support was assigned to the state, the IRA was subject to a levy for both child and spousal support arrearages.

We must be mindful that California has devised a system of ensuring automatic payment of child support arrears by means of levying on support obligors’ assets in financial institution accounts. Financial Institutions are required to provide notice of an order, and to withhold from an obligor’s accounts the amount of the arrearages [see Fam. Code §§ 17453, 17545]. The only way to minimize the levy is for the obligor to claim a hardship. The trial court then must determine the amount of the exemption based on financial hardship by considering the needs of the parties and the other persons the obligor is obligated to support. Regardless of whether the father was the custodial parent or noncustodial parent, the state has the authority to levy on any IRA or any other retirement account.

The LaMoure decision is instructive and provides a clear and unequivocal holding that an IRA cam and will be reached to satisfy support arrearages. There is no safe harbor, not even with an ERISA plan. Federal courts have consistently held that a garnishment order on a pension benefit subject to ERISA may be used to satisfy court-ordered family support payments. In this case, the IRA was tapped, but the father’s pension account was left alone. With this clear directive, we must instruct our clients that a retirement account is simply not a safe harbor.

Aside from admonishing your client, should you have a client facing a levy on his or her retirement account, please carefully review Family Code Section 17520. Based on my read of this statute, there is no language that restricts an obligor’s right to file a motion in the underlying action for (1) modification, (2) to fix a payment schedule on arrearages accruing, or (3) for a judicial finding of compliance with the judgment or order. These remedies are expressly preserved for future court consideration [see Fam. Code § 17520(j)].

References: CALIFORNIA FAMILY LAW PRACTICE AND PROCEDURE, 2nd ed., §§ 140.23[2][b] (execution on IRA accounts), 141.08, 141.09 (property available to enforce support obligations), 141.123 (enforcement of child support obligation by support agency), 141.126[2] (levy by local child support agency), 141.129[2] (support enforcement by Financial Institution Data Match system), 160.33[3] (tax effects of transfers from IRA accounts, generally).

Commentary
Stephen B. Ruben

We now have a definitive California decision following the landmark U.S. Supreme Court case of Troxel v. Granville (2000) 530 U.S. 57, involving a grandparent whose adult child has died, that actually authorizes visitation with her grandchildren over the objection of the surviving parent. In Troxel, the trial court allowed two parents of a deceased parent to have more visitation with their grandchildren than the surviving parent was willing to allow. The Supreme Court looked to a state law of Washington that authorized a trial court to ”grant any person” visitation as long as such visitation was in the best interest of the child. The Supreme Court in Troxel held that the Washington statute, as applied, unconstitutionally infringed on the fundamental parental right to make decisions concerning the care, custody, and control of the parent’s children.

Many of us in the family law field believed that our Family Code Section 3102 would meet the test in authorizing grandparent visitation. However as noted in Hoag v. Diedjomahor, in various California appellate court decisions, Family Code Section 3102 was deemed unconstitutional as applied and no grandparent visitation was ordered [see Zasueta; Punsly; Kyle O.].

Given this appellate history of rejecting grandparents’ visitation rights, what was the rationale or ”tipping point” for granting the visitation here? First, Father did not help himself in not testifying at the trial. Moreover, his representation had shown no reasonable or credible objection to the visitation other than for retaliation to grandmother seeking guardianship. His demand that the children be available for regular study hour did not ring true considering that the children were age one and three. Father also objected to any visitation because he did not want to be bound by a schedule. However, he proposed nothing in return. To add to the mix, his own counsel at the closing argument conceded that visitation with the grandmother was in the children’s best interest. The bottom line is that (1) Father’s lack of a clear road map setting forth the conditions of grandparent visitation, and (2) the lack of strong advocacy, were the primary factors that determined grandmother’s successful request for visitation.

 Practice Pointer. Given the extensive relationship both children had with Grandmother, perhaps, the more constructive litigation approach would have been to propose a reasonable limited access schedule that took into account Father’s right to ”a preemptive strike”, and would have been given special weight in these court proceedings. Not proposing any visitation places the surviving parent at risk for a visitation schedule in which the trial court has very little knowledge and acts in a perfunctory fashion.

 My recommendation in representing the surviving parent when there is a grandparent visitation request is to be open, receptive, and active regarding any proposal for visitation with grandparents. Your client will have an opportunity to construct a visitation plan that will be more conducive to his or her greater parenting responsibility as the surviving parent. Your role as his or her legal counsel is to reach a delicate balance. I also strongly urge that you retain a highly skilled coparent counselor to help facilitate this goal. After all, a grandparent has lost his or her son or daughter. They simply do not want to lose their grandchildren as well.

References: CALIFORNIA FAMILY LAW PRACTICE AND PROCEDURE, 2nd ed., §§ 32.06[2][b], 33.25[2],[4] (grandparents’ visitation rights); CALIFORNIA FAMILY LAW LITIGATION GUIDE, Unit 31 (custody and visitation).

Case Commentary: Cuellar v. Joyce
Stephen B. Ruben
CFLS

Cueller V. Joyce is an important case when evaluating whether you should represent a client who seeks to oppose the return of a child to his or her place of habitual residence under the Hague Convention. As noted by Justice Kozinski, the Hague convention seeks to deter parents from abducting their children across national borders by limiting the main incentive for international action—the forum shopping of custody disputes. Hague Convention procedures are an available remedy in the United States when a child under age 16 has been “wrongfully removed or retained” from the child’s “habitual residence.” The Court must determine the merits of the abduction, but should not be used as an ad hoc forum for a formal custody determination by the party opposing the removal.

Professor Richard Joyce built a sailboat and set sail for Panama where he met Ledya Cuellar, an exotic dancer in a Panamanian neighbor that he described as “slum- like” “beyond the end of the road” and “very dangerous.” Despite these claimed environmental adversities, true love prevailed. Richard and Leyda were married in Panama and nineteen months later, a daughter, K.C. was born. Richard skillfully arranged his ploy and gave Leyda the slip at the Sydney Airport with K.C in tow, leaving Leyda even without a passport. Leyda’ s journey in tracking K.C. led to the Blue Sky country of Montana where she filed her action in United States District Court for the District of Montana seeking K.C’s return. Clearly, the facts support that K.C. was wrongfully removed, K.C’s habitual residence was Panama, Leyda was exercising her custody rights at the time of the removal, and most importantly Leyda in no manner consented to the removal given the dramatic scene at the Sydney airport. Nevertheless, the District Court withheld relief and denied Leyda the return of K.C. K.C. would continue to remain in Montana with her father. The Court concluded that K.C. would be placed in grave risk if she were returned to Panama. The trial court was persuaded by Joyce’s presentation of unsuitable living conditions. Joyce alleged that K.C. and Leyda had lived in a home without running water; residents in their neighborhood used a creek and outhouse for waste disposal; Leyda’s home has no climate control, no refrigerator and little furniture.

Keep in mind that once a plaintiff in an international child custody dispute establishes that removal was wrongful, the child must be returned unless the defendant can establish one of four defenses. Two of these defenses can be established by a preponderance of the evidence, 42 U.S.C.S. § 11603(e)(2)(B): the proceeding was commenced more than one year after the removal of the child and the child has become settled in his or her new environment, Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, art. 12; or, the person seeking return of the child consented to or subsequently acquiesced in the removal or retention, art. 13a. The other two defenses must be shown by clear and convincing evidence, 42 U.S.C.S. § 11603(e)(2)(A): there is a grave risk that the return of the child would expose his or her to physical or psychological harm, art.13b; or, the return of the child would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms, art. 20.

The Cuellar case focuses on the grave risk exception and required the Appellate Court denovo review of the facts assessing whether or not the burden of proof of clear and convincing evidence was met. Justice Koskinski Chief Judge of the Ninth Circuit was simply not persuaded and clearly made the right call in returning the child to Leyda, the primary custodial parent and return to Panama. Neither the medical or psychological concerns raised by Professor Joyce provided clear and convincing evidence to show that the return by K.C. to Panama would pose a grave risk. The Court accepted the diagnosis that K.C. exhibits “ataxia” based on three suspect sources. The first was an unidentified physician. The second source was the testimony of a professor of early childhood education. The third source, a written statement by the Professor’s sister, a registered nurse, truly was not an objective witness nor was she available for cross examination.

To add insult to injury, the Court also overstepped the purview of the Hague convention and got directly into parental fitness and custody issues. The Court relied on self-serving and uncorroborated testimony that K.C. apparently fell seven feet to the ground from a concrete platform. They also relied on uncorroborated testimony that sometimes KC was cared for in Panama by a sick relative. The Court concluded that Leyda was so neglectful that it would be unsafe to give her custody of K.C. As Justice Koskinski correctly assessed, the Trial Court clearly overstepped its bounds and addressed the ultimate question of custody. This is far beyond the purview of the Hague Convention which deals with child abduction.

Practice tips

Keep in mind when assessing whether there is a legitimate defense for opposing the return, a removing parent such as our dear Professor must not be allowed to abduct a child and then, when brought to court, complain that the child has grown used to the surroundings to which they were abducted. The disruption of the usual sense of attachment that arises during most long stays in a single place with a single parent should not be a “grave” risk of harm for the purposes of the Hague Convention on the Civil Aspects of International Child Abduction.

The Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, art. 13a, provides a defense to an action for return if the petitioner consented to or subsequently acquiesced in the removal or retention of the child. The Hague Convention does not define consent or acquiescence in any more definite manner, and there is no statement to guide us in the text or legislative history of the International Child Abduction Remedies Act, 42 U.S.C.S. §§ 11601-1161 Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir. Ohio 1996)

Aquiescence to the removal of the child under the Hague Convention on Civil Aspects of International Child Abduction, Oct. 25, 1980, requires either: an act or statement with the requisite formality, such as testimony in a judicial proceeding; a convincing written renunciation of rights; or a consistent attitude of acquiescence over a significant period of time. As Justice Kosinki noted in his opinion, the only evidence of consent that Professor Joyce presented was that Leyda allowed herself to be separated from him and K.C. at the airport in Sydney. Being a successful victim of this sleight of hand and carefully crafted abduction can never prove consent.

Thus, a word to the wise you should instruct your client to secure a formal consent in writing from the custodial parent living outside the United States with unequivocal language if a child is permitted to stay indefinitely in the States. Additionally, the non-custodial parent should send written confirmation of this indefinite stay in the United States. This written confirmation must include where the child will be residing.

Be sure that the non-custodial parent receives written proof of delivery of this confirmation prior to the child’s departure.