The Court of Appeals for California's Fourth District recently explained in In re C.C. that a parent can be found to have abandoned his or her children for custody purposes, even if the parent continues to pay child support.
Charles and Misty were married in Pennsylvania in April 2001, less than a year after the birth of their first child, M.C. The couple later had another child, C.C., before divorcing in 2005. Misty was granted primary custody of the children, while Charles was ordered to pay $500 a month in support and awarded regular visitation.
Misty later married Eric and, in 2007, a Pennsylvania court granted her permission to move with the children to San Diego, where Eric was stationed in a military position. Eric, who had contributed financial support for the children since 2006, later filed a petition in California seeking to free the children from Charles's custody and control on the ground of abandonment. Eric also requested to adopt the children as a stepparent.
Charles fought the petition in a 2011 hearing, arguing that he had been unable to communicate with the children via weekly video conferencing ordered by the Pennsylvania court because he and Misty could not agree on the specific type of conferencing required. Specifically, he argued that his computer webcam was not compatible with the equipment Misty used and that she would not pay for him to get an upgrade. He also alleged that Misty did not tell him about the move until months after it happened, refused to make the children available by phone and did not provide a mailing address.
M.C., now 10 years old, testified at trial that he loved and wanted to be adopted by his "dad" Eric. M.C. also remembered Charles, but said he had not seen his father since 2005 or 2006. The trial court observed M.C. was "obviously very attached" to Eric, while C.C. referred to Eric as "daddy," and had no memory of Charles. The court also noted that Charles took no action to try to resolve his alleged inability to communicate with the children from 2007 to 2010, and made only token attempts to contact them during this time. As a result, the court granted Eric's petitions.
On appeal, the Fourth District affirmed this decision. In order to terminate a parent's custody rights due to abandonment, the Court explained that it must find that the child was left with another person without support or communication from the parent for at least one year and that this was done with the intent to abandon the child.
Although Charles continued to pay child support, the Court ruled that the evidence was sufficient to support an abandonment finding. "The parental role includes the provision of physical care, nourishment, comfort, affection and stimulation . . . and involves companionship and shared experiences," the Court explained, quoting the Fourth District's 1994 decision in In re Autumn H. "Aside from financial support, Charles completely abdicated his role as the children's father," according to the Court.
As this case makes clear, there are a number of complicated issues that can arise in divorce and custody cases, both for the parents and any prospective stepparents. A person involved in these matters is well-advised to seek the counsel of an experienced family law attorney. With offices throughout the region, Bay Area divorce lawyer Lorna Jaynes provides innovative legal tools to resolve family law disputes.
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