The term due process is bandied around quite a bit without actually describing what it means. Due process generally originates from the Fourteenth Amendment of the United States and the fundamental principle mandates that there has to be notice and an opportunity to be heard and EQUAL protection under the law. Due process is viewed as the gold standard in criminal cases. The same standard applies in family law cases, contrary to the “opinion” of our CA family court judges.
CA family code section 3048 specifically states that there needs to be notice and an opportunity to be heard at EVERY proceeding involving custody and visitation of children. The statue specifies:
“(a) Notwithstanding any other provision of law, in any proceeding to determine child custody or visitation with a child, every custody or visitation order shall contain all of the following:
(1) The basis for the court’s exercise of jurisdiction.
(2) The manner in which notice and opportunity to be heard were given”
The Fourth District Court of Appeal, San Diego division, in a published decision has defined the due process requirement in family law as adhering to the STRICT legal principles governing the action. If these principles are not adhered the judge has abused his/her discretion. The case is In F.T. vs. L.J. (2011) 194 Cal.App.4th which specified that the appropriate legal principles need to be applied to the action in question, which also apply to the best interest of the child standard in any temporary order.
“Generally, a trial court abuses its discretion if there is no reasonable basis on which the court could conclude its decision advanced the best interests of the child. ( In re Marriage of Melville (2004) 122 Cal.App.4th 601, 610 [ 18 Cal.Rptr.3d 685]; In re Marriage of Burgess (1996) 13 Cal.4th 25, p.32) However, “all exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.” ( People v. Russel (1968) 69 Cal.2d 187, 195 [ 70 Cal.Rptr. 210, 443 P.2d 794], superseded by statute on another ground as noted in People v. Anderson (2001) 25 Cal.4th 543, 575 [ 106 Cal.Rptr.2d 575, 22 P.3d 347]; see also People v. Superior Court (Alvarez) (1997)14 Cal.4th 968, 977 [ 60 Cal.Rptr.2d 93, 928 P.2d 117]].) Therefore, a discretionary decision may be reversed if improper criteria were applied or incorrect legal assumptions were made. ( Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435-436 [ 97 Cal.Rptr.2d 179, 2 P.3d 27].) Alternatively stated, if a trial court’s decision is influenced by an erroneous understanding of applicable law or reflects an unawareness of the full scope of its discretion, it cannot be said the court has properly exercised its discretion under the law. ( People v. Belmontes(1983) 34 Cal.3d 335, 348, fn. 8 [ 193 Cal.Rptr. 882, 667 P.2d 686]; In re Carmaleta B. (1978) 21 Cal.3d 482, 496 [ 146 Cal.Rptr. 623, 579 P.2d 514] [“discretion can only be truly exercised if there is no misconception by the trial court as to the legal basis for its action”]; People v. Aubrey (1998) 65 Cal.App.4th 279, 282 [ 76 Cal.Rptr.2d 378]; People v. Marquez (1983) 143 Cal.App.3d 797, 803 [192 Cal.Rptr. 193] [“an erroneous understanding by the trial court of its discretionary power is not a true exercise of discretion”].) Therefore, a discretionary order based on the application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion and is subject to reversal even though there may be substantial evidence to support that order. ( Under, at p. 436; Caro v. Procter Gamble Co. (1993) 18 Cal.App.4th 644, 655 [ 22 Cal.Rptr.2d 419].)”