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