NPO publishes blog articles to inform and to stimulate conversation about issues of importance to NPO's mission.  All blog articles express the opinions of the authors as individuals and do not necessarily reflect the views of National Parents Organization, its Board of Directors, or its executives.  

August 19, 2018 by Robert Franklin, Member, National Board of Directors, National Parents Organization

In one of the most astonishing and disturbing opinions in a long time, the California Supreme Court has ruled that a father’s custodial rights to a child can be voided by a court without even minimal due process of law. Do I overstate the matter? You be the judge.

Jorge L. and Gladys M. lived together unmarried in Honduras. They had four children of whom Bianka, born in 2002, was the youngest. In 2005, Gladys moved to the California. In 2012, Bianka traveled to California to be with her mother.

In a family court action naming her mother as the respondent, Bianka asked for an order placing her in her mother’s sole custody.

In short, Bianka was asking the superior court to rule on her father’s right to custody of her and find that it was in her best interests to be exclusively in her mother’s care. Needless to say, as a legal matter, Jorge’s interests were at risk. The superior court, later affirmed by the Court of Appeals, said that it couldn’t make such a ruling without Jorge being joined as a party to the case.

The Supreme Court overruled both lower courts saying that Bianka’s father was not a necessary party to the suit, that his parental rights could be infringed without his presence or ability to be heard. That is, the most basic aspects of due process of law were to be ignored regarding Jorge and his rights decided without his consent or evidence.

Here is what the superior court afforded Jorge in terms of due process of law and that was expressly approved by the Supreme Court:

After filing her petition, Bianka requested the appointment of a guardian ad litem to represent her interests; she served both Gladys and Jorge with the application via mail. (Fam. Code, § 7635, subd. (a).) Bianka’s counsel also notified Jorge by telephone, in Spanish, and informed him of the hearing date. Bianka later submitted a request for order, asking the court to grant sole custody to Gladys and to issue findings relevant to SIJ eligibility. Bianka’s counsel served Jorge by mail with a copy of the petition, the proposed order of custody, which contained the SIJ findings, and supporting documents. Counsel again called Jorge to advise him of the upcoming hearing on the request for order. Jorge neither responded to the petition nor participated in the hearing, which took place more than a month later.

So, in Jorge L.’s case, American due process of law consisted of receiving in the mail a copy of Bianka’s petition written in English, a verbal notice of the hearing date and a second phone call of another hearing. That done, the California Supreme Court assures us that Jorge was entitled to nothing more. The fact that Jorge is likely too poor to travel to the U.S., hire a lawyer and contest the matter in court was ignored entirely. Indeed, the Supreme Court made no mention of this more-than-likely fact.

The nut of the matter to the superior court was that, as a necessary party to any action that involved the diminution of his legal rights, Jorge had a right to take part in the litigation if only through counsel. Since he was in Honduras, the court had no personal jurisdiction over him, so it couldn’t proceed. That’s obvious enough, but the Supreme Court managed to decide that basic concepts of law (e.g. in personam jurisdiction) were unnecessary.

Now, what the superior court could have done is simply appoint for Jorge an attorney ad litem. That person could have contacted Jorge, gotten his version of the facts of the case and presented them to the court via a deposition if necessary. If Jorge agreed to Bianka’s living in Gladys’ custody, then the ad litem could have so informed the court. If not, he could have contested the matter. In that way, the court would have lawfully asserted jurisdiction over Jorge and Jorge would have had an opportunity to be heard.

But that’s not what the superior court did and the Supreme Court has now ruled that a father’s rights can be legally diminished despite the fact that the court doing so has no jurisdiction over the man and the man has no ability to make his case.

So, did I overstate the matter?

More on this tomorrow.

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