November 23, 2020

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Family Law Tentative Ruling Announcements


Please note that the family court issues tentative ruling announcements on the court day prior to the scheduled hearing for specific types of motions. Tentative rulings are only provided on the Internet and posted in the clerk’s office lobby. Internet postings occur at 1:30pm daily at www.stanct.org.

Parties are not required to give notice of intent to appear to preserve the right to a hearing. The tentative ruling will not become final until the hearing. (Stan. Cnty. Local Rules, rule 7.05.1) However, as a courtesy to the Court, and other parties or counsel with matters on calendar, notice of intended appearance or non-appearance is encouraged and may be sent by e-mail to the following address: familylaw.tentatives@stanct.org between the hours of 1:30 P.M. and 4:00 P.M. If you do not receive a confirmation e-mail from the clerk, you may call to speak directly with a Calendar Clerk at 209-530-3107.

Any party filing pleadings or documents on a tentative ruling matter within five (5) days of the hearing should provide a courtesy copy to the Courtroom Clerk and the Court’s Family Law Research Attorney by placing a copy in the drop box slot on the door of Room 223, Second Floor of the main Courthouse. Failure to do so may prevent the Court from consideration of such, may result in a continuance, and/or may be considered in the award of conduct-based fees and costs. (Stan. Cnty. Local Rules, rule 7.05.1(B).)

All parties and counsel are required to meet and confer in a good faith effort to resolve the dispute on any request, motion or hearing, with the exception of those involving domestic violence, and to exchange any documents upon which reliance will be made at the hearing. (Cal. Rules of Ct., rule 5.98; Stan. Cnty. Local Rules, rule 7.05.1(C).) Failure to do so may result in a continuance and may be considered in the award of conduct-based fees and costs, or both. If sufficient information regarding an adequate pre-hearing meet and confer effort is not provided in the moving and opposing papers, in the Court’s discretion, the matter may be placed at the end of the calendar and not called until the parties or counsel advise the Court that they have complied with their obligations and/or resolved the matter.

 

Date: November 23, 2020

 


 

The following are the tentative ruling cases calendared before Judge Alan Cassidy in Department #11:

 

691355 – QUIROGA VS QUIROGA

 

Other Party’s Motion re Joinder for Child Visitation—HEARING REQUIRED.

 

Pursuant to the Findings and Order After Hearing (FOAH) of November 3, 2020, regarding child custody mediation, Petitioner has been awarded sole legal and physical custody of the minor children.  

 

Other Party (OP) claims standing as the stepparent of the minor children.  As such, OP’s request is governed by Family Code section 3101.  Stepparents—whether former domestic partners or former spouses—have no legal right to custody.  (Chalmers v. Hirschkop (2013) 213 Cal.App.4th 289, 305.)  Stepparent visitation rights are secondary to a “birth parent's” custody or visitation rights.  (Hogoboom & King, Cal. Prac. Guide Family L. (TRG 2020) Ch. 7-F, § 7:514.)  In order to prevent an unconstitutional interference with parental autonomy, section 3101 defers to the birth parent(s)’ decision with regard to stepparent visitation unless the objecting birth parent(s) are shown to be unfit or denial of stepparent visitation to be detrimental to the minor children.  (Marriage of W. (2003) 114 Cal.App.4th 68, 75; Chalmers, supra, 213 Cal.App.4th at 310 [court has discretion to grant stepparent visitation against parents' wishes only in most “unusual and extreme cases”].)  

 

Accordingly, section 3101 is unconstitutionally applied if the court fails to give a presumption of validity to a “fit” parent's decision that stepparent visitation would not be in the child's best interest.  (Marriage of W., supra, 114 Cal.App.4th at 74-75; Chalmers, supra, 213 Cal.App.4th at 302 [to protect parent's constitutional right to raise child, stepparent must overcome presumption that fit parent will act in child's best interest by “clear and convincing evidence”].)  

 

These rules are virtually identical to the constitutional analysis with respect to grandparent visitation requests under the nearly adjacent Family Code sections 3103 and 3104.  Like the situation in a section 3104 visitation request, this is not an independent petition but rather one in which child custody and visitation between the birth parents has already been determined by the aforementioned FOAH.  This order is now modifiable only by demonstrating a material change of circumstances.  

 

Consequently, the Court finds that the mandatory joinder in child custody or visitation matters, as applied to a section 3101 request, is constitutionally subject to the same exception to mandatory joinder as provided by section 3104.  (Cal. Rules of Ct., rule 5.24(e)(1)(B) [Before ordering the joinder of a grandparent of a minor child in the proceeding under Family Code section 3104, the court must take the actions described in section 3104(a)].)  In particular, the parameters of Marriage of W, Chalmers, and progeny mandate the equivalent of a rebuttable presumption in favor of objection by the custodial birth parent(s) only to be overcome by clear and convincing evidence that stepparent visitation is in the best interests of the minor child.  (Fam. Code, § 3104(f),(g).)  

 

For better or worse, the Legislature and the cases establishing constitutional rights of parental autonomy accord lesser visitation rights to stepparents than grandparents, and to interpret section 3101 and rule 5.24 in manner diametrically opposed to the Legislature’s scheme for non-parent child visitation and contrary to Supreme Court precedent would be ill-advised, if not reversible error per se.  (See, e.g., Troxel v. Granville (2000) 530 U.S. 57, 120 S. Ct. 2054; Marriage of Harris (2004) 34 Cal.4th 210, 226-230.)

 

That said, if all parties appear, particularly Petitioner, and are willing to consider OP’s joinder and visitation request to even a limited extent, the Court will deem objections to have been waived, joinder granted, and the parties may be sent to mediation at the hearing or at the next available date.  Otherwise, the parties shall appear for the scheduling of the long cause hearing regarding OP’s visitation request.

 


 

The following are the tentative ruling cases calendared before Judge J. Richard Distaso in Department #13:

 

 THERE ARE NO TENTATIVES.

 


 

The following are the tentative ruling cases calendared before Judge Jack M. Jacobson in Department #14:

 

THERE ARE NO TENTATIVES.

 


 

The following are the tentative ruling cases calendared before Judge Kellee Westbrook in Department #25:

 

THERE ARE NO TENTATIVES.