"When Abandonment Isn't Abandonment"

Sarah and Christopher were married in 2006. During their marriage, they had three children. They separated in July 2011, partly due to Christopher's drug and alcohol abuse, and Sarah and the children moved in with James. (Because children are involved in this case, the adults' last names were not included to allow the children to remain anonymous.) Christopher visited with the children on weekends.

In December of 2011, Sarah and James went on a week's vacation out of the country and left the children with Christopher. Toward the end of the week, Christopher began e-mailing Sarah that he was drinking and that he should not be left alone with the children. He also told Sarah that she should be given full custody of them. Sarah told Christopher that he should take a break from seeing the children.

In January of 2012, Sarah filed for divorce. In May, after negotiations between the parties, Christopher and Sarah agreed that Sarah would retain sole physical and legal custody of the children, and Christopher would receive liberal visitation of them but at Sarah's discretion.

By the spring of 2012, Sarah refused to speak directly with Christopher, and James told Christopher that Sarah would not allow him (Christopher) to communicate with the children until he had been sober for 30 days. In June of 2012, Christopher successfully completed a detox program, and Sarah agreed to allow him supervised visitation with the children of one hour per month – as long as he remained sober. However, Sarah never actually allowed Christopher to see the children no matter how many times he asked her. Christopher went back into Family Court and requested the court modify their visitation agreement to specific days and times to allow him to see their children.

In September of 2012, Sarah and James married, and in November of 2011, Sarah filed a request with the Juvenile Court to terminate Christopher's parental rights, claiming that he had abandoned his children. By doing so, the Family Court could not respond to Christopher's request to modify visitation until the Juvenile Court matter was concluded.

In California, a parent can be determined to have abandoned his/her child(ren) if he/she has not had contact with that child for a year or longer, has paid nothing toward that child's support during that time, and there is evidence of the intent to abandon. If Christopher were found to have abandoned his children, he would lose his parental rights and not be entitled to ANY court requests regarding the children.

The Juvenile Court appointed representation for the children and ordered an investigation to determine whether Christopher had, in fact, abandoned his children. By law, the investigation and the subsequent hearing had to be concluded within 45 days, unless there was a substantial reason for a longer period of time. However, because James and Sarah refused to cooperate with the investigators, the investigation was not concluded until 118 days later.

The Juvenile Court found that Christopher did not abandon his children. He made attempts to see his children and spoke with them by telephone during that time. The court found that he did pay support during the period in question, including paying the children's monthly health insurance premium. The court further found that Christopher was prevented from seeing the children due to James and Sarah's delay tactics and not because of Christopher's intent to abandon his children. The court also awarded Christopher attorney's fees, thus, penalizing Sarah and James for filing a frivolous motion.

Sarah and James appealed.

The Appellate Court agreed with the Juvenile Court allowing Christopher to retain his parental rights and that Sarah and James had to pay Christopher's attorney's fees.

If you or anyone you know may need assistance with a child custody matter, please contact Law Offices of Makupson & Howard for a consultation.

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