People have children, sometimes they marry, and sometimes they remarry. The parental figures in a child’s life often include both natural parents and step-parents. That can raise complicated legal questions about who should be involved in the proceedings when parents, step-parents, or a combination of both decide to divorce. California’s Fifth District Court of Appeals took on that issue in a recent decision.
Father and Mother were never married but are the natural parents of Daughter. Mother married Step-Father in August 2008, and the couple had a child before separating in April 2010. Father was in prison in Washington State for an undisclosed crime at the time, and he is scheduled to be released in August 2019.
The divorce proceedings between Mother and Step-Father were highly contentious, according to the Court. A trial judge in 2010 issued a restraining order against Step-Father after Mother claimed that he had struck her with an open hand and punched her in the face and provided photographic evidence of bruises and a black eye. Step-Father, meanwhile, claimed that Mother had also been abusive to him. He cited a 2012 incident in which Mother allegedly came to his house intoxicated, assaulted a woman inside the home, and threatened to assault another. Mother was arrested after this incident. The trial judge then issued a temporary restraining order against Mother and awarded Step-Father temporary custody of Daughter. The judge later revised the order to allow for joint custody.
After being informed of the divorce proceedings, Father sought to intervene by filing a motion for joinder. The trial judge denied the motion.
Reversing the decision on appeal, the Fifth District said Father had the right to be involved in the divorce proceedings because the case may implicate his interest as a parent. Section 389 of the California Code provides that a person “shall be joined as a party in the action if … he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i)…impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring … inconsistent obligations….,” the Court explained. Here, that interest stemmed from Father’s paternal relationship with Daughter. Since the trial judge was being asked to determine custody over Daughter, the Court said Father’s interest was necessarily at risk. The Court noted in particular that the previous custody orders didn’t address the question of whether Father could have contact with Daughter.
As a result, the Fifth District remanded the case back to the trial judge with instructions to grant Father’s motion for joinder. It declined, however, Father’s request to order the trial judge to allow him contact or visitation rights. The Court said that this decision should be made by the trial judge after considering the arguments for and against the request.
Issues stemming from third parties with interests in a divorce proceeding often come up in divorce cases. They are just some of the matters that a person considering divorce should discuss with an experienced attorney before deciding on a course of action.
If you’re considering seeking a divorce in California, contact San Jose divorce lawyer John S. Yohanan. With more than 30 years of experience, Mr. Yohanan is an accomplished family law attorney who has helped a number of clients resolve a wide variety of issues on optimal terms. Call our office at (408) 297-0700 or contact us online to schedule a consultation.
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