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.

Anatomy of Domestic Violence Preliminary Examinations in California

Chris Brown is scheduled to attend, on Monday afternoon, a preliminary examination regarding his two felony counts of assault against Rihanna that is alleged to have occurred on February 8, 2009.

This blog posting describes the preliminary hearing process in California.

Most court cases settle. Only about 5% of cases, whether civil or criminal, actually go to a trial.  This figure suggests that there is a strong likelihood that Mr. Brown’s case will settle as well.  Every court appearance is an opportunity for a case to settle regardless of whether the proceeding is a pre-trial or settlement conference.

Since most cases settle, the preliminary examination may be the only opportunity for the public to gain knowledge about the case’s merits through testimony and other forms of evidence including pictures, if available.

There is also a possibility that the case may be continued. Absent an emergency or settlement, the proceeding can be expected to proceed.

Usually continuance requests require a motion which allows review by a judge for the necessity of the continuance.

Under both the Federal and California Constitution, a person accused of committing a felony offense is entitled to either a grand jury indictment or a preliminary examination before being required to face a felony trial and its potential expense and embarrassment. 

A defendant is not entitled to both forms of review. Under the Federal Constitution, a preliminary examination is not specifically required leaving only a grand jury preceding that is defined as a minimum requirement that a state must provide.  The California Constitution allows for either method.  Many states follow the Federal view.

The People have the burden of proof at a preliminary examination. The burden required is probable cause that a felony has occurred and that the accused is the person who committed it.  A judge, sitting as a magistrate, determines if this burden has been met.  If it has not, the defendant is discharged.  The People then have the option of appealing the magistrate’s decision or they are allowed to file the charge a second time.

If the People have met their burden of proof, the defendant is bound over for trial.  The defendant has the right to file a motion testing the magistrate’s finding.  If the motion is granted the defendant is discharged and the People have the right of appeal or to file another petition.

Many people mistakenly believe that the evidence standard at a preliminary hearing is proof beyond a reasonable doubt which is instead the required burden of proof in a criminal trial of the charges.

The people are not required to call the actual victim as a witness in order to prove their case and to meet their burden of proof.  In 1990 state Proposition 115 was passed which made significant changes to the legal scheme of preliminary examinations.

As codified, a preliminary examination is not for defense discovery.  California criminal rules do not allow for depositions or interrogatories so the Proposition changes were very significant ones.

The victim’s statement may be read by a qualified police officer and will suffice as testimony for purposes of proof.  Obviously if this occurs, the defense is unable to cross examine the complaining witness.

In most cases of sexual assault, molest, and domestic violence, the prosecutor will call the actual victim as a witness.  It is realized that if the actual victim does not appear and is therefore not subject to cross examination, it is less likely that the case will settle.

What happens if the alleged victim refuses to testify?  In the past a person could be held in contempt of the court and be taken into custody.  A new law now requires that there be a three day period of delay in the contempt process to allow for appellate review of the court’s order to testify.  Subsequent refusal may result in detention.

If a witness recants, effectively denying what was said to the police, other witnesses may be called to impeach the witness with prior statements made to the police, medical personnel, or others who were present.

The defendant has a right to testify at the hearing but almost always declines to do so. 

Most preliminary hearings end with a finding that the People have met their required burden and the defendant is bound over for trail.

The defendant is again arraigned and this time the charging document is called an information and may contain any charges proved by the evidence given at the preliminary examination.  The ultimate charges may be the same or different from the arrest charges.

The defendant has the right to question the sufficiency of the evidence to support the charges brought by the information by filing a sufficiency motion to strike part or all of the information.

The Brown preliminary examination is estimated to take one half day to conduct.