Judge Hyman
Just Beat It

While it appears that the majority of the media are now more interested in the medical aspects of Michael Jackson’s death than the custody of his children, the child custody litigation aspects are far from over.

The media have been concentrating on the potential litigation in the probate court.  However, it is very possible that litigation could also be filed in family court and possibly in dependency (abuse and neglect) court as well.

In California, as well in every state in the US, custody decisions are based upon the “best interest” of the child or children.  Decisions are not based upon the best interests of the adults involved.

True, the law in all states gives a statutory preference for biological parents and the request/suggestions of the deceased parent.  However, the requests are not binding on a judge.

The potential for multiple filings in different divisions of the court and possibly in different counties makes it very likely that this dispute will not be over very soon.

This blog discusses the potential “what if” child custody possibilities using a hypothetical case.

Mother and father are divorced in Orange County California.  Their case is long over with the parties having stipulated to a parenting plan.  Mother has not been very involved in the lives of the children for the past several years.

At the time of his death, father is presently living in Los Angeles County but also has an estate in Ventura County.  He dies with a will that expresses his desire that his children be parented by his mother and requests that the court order that she be their guardian.

It is possible for probate cases to be filed in Los Angeles and Ventura with respect to the property issues of probate as well as the guardianship appointment.  A motion might be brought requesting the cases be joined in one county for the conservation of resource issues, both with respect to the property and guardianship as well as the court.

The biological mother/ ex-wife may bring a motion and request for a parenting order in the county where the family court last issued a parenting order.  It is possible that the father’s mother may petition to be allowed intervene as a party of interest given the preference request made in the father’s will.  Mostly likely a court will make an order allowing the intervention.

Which court’s order is most likely to prevail, assuming that both probate and family court issue orders that are not in agreement?

It depends!  Where the first cause of action was filed might be controlling or which court issued the first order might be the controlling feature.

If the family court and probate court actions are located in the same county, then a court rule may very well dictate the case procedure with respect to the division, and judge having jurisdiction.  While remaining in two separate files, both would usually be given to the family law court.

If cases are in two different counties, hopefully the two judges would speak to each other and decide which court should continue with the case.  I am unaware of any case law that requires one court to give jurisdiction to the other court.

The family court usually has better resources for the assessment of child custody issues.  While the probate court does have probate examiners who make recommendations to the court regarding the approval of guardianships, they are not the most trained in this area.  Also, most guardianships last for short periods of time with the ultimate goal being the dismissal of the guardianship and for the child to return to the family.

If a complaint is made about the safety of a child, it is possible that the dependency court might become involved.  While the law may be unclear regarding jurisdiction between probate and family court; there is no question that the dependency court has the power to issue appropriate orders that will trump any orders issued by another court.

The dependency system also has experts that are able to advise the court regarding parenting plans and unlike the family court and probate court, the dependency court is able to provide families needed resources along with court orders requiring parties to complete programs or to possibly have parental rights terminated.

What is clear from the above hypothetical is that the law needs to be reformed to better serve children with necessary investigations by qualified personal as well as quality evidenced based programs to help unify families if that is safely possible.