Ontiveros v. Superior Court CA4/1
D079331
| Cal. Ct. App. | Sep 23, 2021Background
- Kimberly and David divorced in 2009; a 2013 family-court order gave them joint legal custody, Kimberly physical custody, and limited visitation to David.
- In June 2020 Kimberly sought sole legal custody, reduced visitation, and therapy, alleging the children refused visits because David shouted, disciplined physically, and refused therapy; David did not file a responsive declaration.
- The parties mediated in November 2020 and agreed to keep joint legal custody, Kimberly retaining physical custody, David visiting at his discretion, and conjoint therapy; the court adopted the agreement in March 2021.
- In April 2021 the court ordered Kimberly to sign a therapist retainer and modified visitation to allow David weekend park visits, directing Kimberly to encourage and participate; a review hearing was set for August 4, 2021.
- At the August 4 review hearing the court heard that therapy had paused and the children refused visits; without prior notice or admitting evidence the court granted David temporary physical custody and barred Kimberly from contacting the children.
- Kimberly sought a writ; this court stayed enforcement, ordered return of the children to Kimberly, and ultimately issued a peremptory writ vacating the August 4 order and dissolving the stay; the court denied Kimberly’s request to reassign the case to another judge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the family court violate due process by changing physical custody and prohibiting contact without notice or hearing? | Kimberly: court deprived her protected parental liberty interest without notice or opportunity to be heard. | David: Kimberly had sufficient notice/opportunity and the temporary change was justified by noncompliance and the children’s safety. | Court: Due process violated; August 4 order vacated and writ granted. |
| Should the case be reassigned to a different judge for further proceedings? | Kimberly: judge showed bias and should be disqualified. | David: no disqualifying bias; reassignment not required. | Court: Denied reassignment; no reasonable doubt about judge’s impartiality. |
| Did the family court abuse its discretion by refusing to issue a statement of decision? | Kimberly: refusal was an abuse of discretion. | David: not dispositive given other procedural issues. | Court: Did not decide on the merits because due process ruling made it unnecessary. |
Key Cases Cited
- Stanley v. Illinois, 405 U.S. 645 (U.S. 1972) (parental liberty interest protected by due process)
- Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (U.S. 1950) (notice and opportunity to be heard are fundamental due process requirements)
- In re Marilyn H., 5 Cal.4th 295 (Cal. 1993) (parental custody and companionship as protected liberty interests)
- McDowell v. Orsini, 54 Cal.App.3d 951 (Cal. Ct. App. 1976) (parent entitled to notice and hearing before custody-modifying orders affecting companionship)
- Palma v. U.S. Industrial Fasteners, Inc., 36 Cal.3d 171 (Cal. 1984) (procedure for issuing writ in the first instance)
- Lewis v. Superior Court, 19 Cal.4th 1232 (Cal. 1999) (circumstances supporting issuance of writ in the first instance)