MODIFIED PUBLISHED FAMILY LAW OPINION Second Appellate district affirms joint physical custody order allowing a move away to Israel. Mother’s immigrant and visa status not relevant. No abduction risk present.

http://www.courts.ca.gov/opinions/documents/B242123M.PDF

The appeal court cited  F.T. vs. L.J. (2011) 194 Cal.App.4th 1 as applying the correct legal standard under this case  and that there was no abduction risk to the child pursuant to CA family code section 3048 (b).  “No findings on all eight factors under section 3048, subdivision (b)(1) were  required given the trial court’s finding that there were no facts indicating a risk of abduction.

The appealed order was from a denied motion to set aside a statement of decision.  The statement of decision allowed the move away of the child to Israel after a custody trial. The mother’s visa was set to expire at the end of the custody matter.

The case has enormous relevance for anyone whose immigrant status has been used as the basis of a custody decision as CA family code 3040 (b) specifically cites that the immigrant status of a parent shall not disqualify a parent from receiving custody. In this case the mother although she was offered green card sponsorship had no interest in remaining in the United States as she had employment in Israel. The trial court focused on her parenting skills rather than on her immigration status, which has no relevance to custody proceedings.  The court concluded that G. “has valid good faith reasons for her wish to relocate. She wishes to be near her  family in a country where she can obtain employment not associated with [Jonathan], where she will not be as dependent upon [Jonathan], where she can obtain emotional and  financial support and where she believes she will find a better environment for raising the  child.” These findings are based on substantial evidence, and we must remember that  there is no dispute that G.’s immigration status requires her to return to Israel when the  custody litigation is at an end.”

Section I, clarifies that the trial court was not required to make findings under Family Code § 3048 as no abduction risk had been presented pursuant to CA family code section 3048 (b). Section II, clarifies that the trial court imposed adequate protective measures and that no bond was required given the measures implemented by the trial court and as the mother could not afford the bond. Section III, clarifies the legal standard under F.T.v. L.J. (2011) 194 Cal.App.4th 1, 15, requiring reversal to any situation if the trial court applied improper criteria or misunderstood the law, as then the court has not properly exercised its discretion.

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One comment on “MODIFIED PUBLISHED FAMILY LAW OPINION Second Appellate district affirms joint physical custody order allowing a move away to Israel. Mother’s immigrant and visa status not relevant. No abduction risk present.

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