When Guardians divorce

[SLYarnell]

Dear Soc,

DH's daughter lives with guardians in California, recently we became aware of a DV assault (Assault with a deadly weapon) on the "host father" by the "host mother" "host father" has filed a Dissolution petition and restraining order.  It is the "host mother" that is the relation (second cousin) to the child.

1) Since the guardianship is in both names would a divorce affect the guardianship?

2) Should the violence in the family (one additional documented incident against SD) be enough to terminate against them both as the "host dad" allowed the violence for more than 4 years without protecting the children, bringing his judgement into question?  None of this was revealed during the custody battle!

3) Do you know of any California case law we can cite that deals with termination when the guardian is not doing a good job?

We will be filing Pro Per Monday a Petition to terminate.  I would love for you to read it and comment if you would?

Thanks again,

SLY

[socrateaser]

>1) Since the guardianship is in both names would a divorce
>affect the guardianship?

Not unless you challenge it. And, I think that this represents a substantial change in circumstances affecting the child(ren)'s best interests, so you should be able to obtain a new custody hearing.

>
>2) Should the violence in the family (one additional
>documented incident against SD) be enough to terminate against
>them both as the "host dad" allowed the violence for more than
>4 years without protecting the children, bringing his
>judgement into question?  None of this was revealed during the
>custody battle!

Same answer as #1.

>
>3) Do you know of any California case law we can cite that
>deals with termination when the guardian is not doing a good
>job?

You don't need any. The judge will want an investigation.


>
>We will be filing Pro Per Monday a Petition to terminate.  I
>would love for you to read it and comment if you would?

Yep.

[SLYarnell]

Can I send it to you in email since I would like you to see exactly what we are sending and dont think I should post it here?

Thanks you!

SLY

[socrateaser]

.

[SLYarnell]

DH Name

Attorney Pro per

Superior Court of the State of California
In and for the County of




I, Dad, declare:
I am the natural father of child, the minor in question in the above action. I have personal knowledge of the matters set forth herein. I can and will competently testify to the matters contained in this declaration under oath if called to do so.
I. A Brief History
In March of 2001, I started proceedings to terminate the Guardianship of my daughter  from her previous guardian,  It was during the first hearing on this matter that I was made aware that daughter was living with a distant relative, "host mom", and her husband "host dad" and their 5 children, and that she had been living there since at least Jan 8, 1998. Judge  eventually ruled in Nov. 2002, that the "host parents" had been acting as de-facto guardians and granted their petition to be named successor guardians. Judge  based this ruling on several factors, including the lack of time daughter had spent with me to that date (she had not visited my home as of yet) as well as other factors, including the bond daughter had with the "host" children, and his rumination in open court that all of the experts in the case had recommended that daughter have two loving families and that the only way he could order such an arrangement was to award custody of daughter to the hosts and order that I have visitation; whereas he could not order me to allow the hosts to have visitation with daughter. He also did not find me as an unfit parent. Letters of guardianship were issued to both "host parents" in May of 2003.
In subsequent hearings on the case brought by parties, including the hosts attorney, and the guardian of daughter estate,  other irregularities in the hosts home and behavior have become known to myself and to the court. There has been a general lack of clarity in the hosts family's understanding the orders of the court. Examples of this would include: not arranging visitation flights to Seattle in a timely manner, costing daughters estate more money than it should, scheduling her return flights to California early in the morning of our last day of visitation; in fact on a typical three day weekend visitation, Daughter will arrive on the last flight from California, at 7:30pm in Seattle, and leave on the first available flight as early as 7:00 am on Monday. Instead of a 72 hour weekend visitation, I will be left with 60 hours of which 24 or more hours will be sleeping, all but robbing me of precious time with my daughter. This is necessitated by the hosts insisting that she fly out of the Fresno airport, rather than the Burbank airport, which their Bakersfield home is almost equidistant. Flights are similarly priced, and in fact in some instances are cheaper than flights out of Fresno, and there are 5 or more flights a day, rather than the 2 flights a day between Fresno and Seattle. Not making daughter available for our arranged, twice weekly phone calls, unless there was no other alternative. Not maintaining a consistent schedule with daughters councilor for her court ordered counseling sessions, not making sure that daughter was covered under the health insurance plan of "host dad", as was court ordered, and in general, undermining the relationship between daughter and myself.



II. An overview of the motion to terminate Guardianship
I am filing this motion because it has come to my attention that daughter is currently living in a dangerous situation. The guardians,  have separated; there is a domestic violence restraining order against "host mom" for violence she has allegedly perpetrated against "host dad"and their children, including daughter. (See attached appendix A, declaration of "host dad", filed in  County on July 29, 2004) In "host dads"declaration he alleges that "host mom"threw a butchers knife at him, stabbing him in his buttocks, requiring emergency care. He alleges this incident took place while the hosts children and three of their friends were home. daughter was not present at the time, as she was in Seattle at my home for her scheduled summer vacation. "host dad" also alleges that "host mom" has thrown a knife at daughter in 2001 or during the period while "host parents"were attempting to become successor guardians. In this same petition he requests supervised visitation for all of the host children, stating that "host mom" is a risk to flee. "host dad"also states in his declaration that host mom has been taking Effexsor for depression since approximately 2001, yet in Oct-Nov. 2002 while at trial to determine daughters custody, host mom was asked under oath if she was currently on any medication or under a doctors care, to which she answered no. host mom constitutes an immediate danger to daughter, and host dads living situation has become tenuous at best, forcing him to live with his parents with the 5 host children, plus daughter. host dads ability to make safe decisions for my daughter has to come under serious question, as there are multiple instances listed of knife throwing as well as several other instances of aggressive, destructive behavior by host mom, yet he chose to keep his children in this atmosphere, and to in fact try to add other children, namely daughter, to it. It is for these reasons that I am asking the court to terminate the guardianship of daughter, and to remove the guardians, host parents.


III. How the Law applies to this Motion
Current precedence for terminating guardianship cases has been found in Guardianship of Kassandra H. (1998) 64 Cal.App.4th 1228, 75 Cal.Rptr.2d 668.
The court in Kassandra H. at page 1238, proceeds to outline the correct standard to be applied in the termination of guardianship proceedings. First, the original cause of the guardianship must be absent, but that is not sufficient. Next, the trial court must evaluate the overall moral fitness of the parent seeking termination. However the court in Kassandra H., at pages 1238-1239, makes clear that it is not sufficient simply for the parent to establish that he is of overall good moral fitness. Said the court:
Additionally, continuity and stability in a child's life most certainly count for something, again as in Guardianship of Boulad(1949) 90 Cal. App. 2d 135, Guardianship of Brock(1957) 154 Cal. App. 2d 431 and Guardianship of Davis(1967) 253 Cal. App. 2d 754,762 all illustrate by their use of the family law changed circumstances standard. Children are not dogwood trees to be uprooted, replanted, then replanted again for expediency's sake...
In substantive family law, stability and continuity in a child's living arrangement are so important in themselves that there must be a "persuasive showing of changed circumstances affecting the child" to overcome the disruption necessarily inherent in any change of custody. [Citing in re Marriage of Carney (1979) 24 Cal. 3d 725,730; In re Marriage of Burgess (1996) 13 Cal. 4th 25,39; Buchard v. Garay(1986) 42 Cal 3d 531,535, and others]

Concluded the court in Kassandra H., at page 1239:
We do not go so far as to say that the "Changed Circumstances" of a guardianship must demonstrate "best interest" to justify termination of a guardianship...However, any new circumstances justifying the termination of a guardianship must be sufficient to overcome the inherent disruption of tearing a child away from a guardian who is doing a good job of caring for and nurturing the child.

IV. Application of this standard to the present Case
Clearly, the court in Kassandra H. assumed that the guardians, in this case, host parents, would be providing a stable home for their ward to live in. This is clearly not the case here. The important words as they apply to this case are "However, any new circumstances justifying the termination of a guardianship must be sufficient to overcome the inherent disruption of tearing a child away from a guardian who is doing a good job of caring for and nurturing the child." (emphasis added). The court also sited "..continuity and stability in a child's life and living arrangements" this is also clearly not present here, The hosts have moved twice since June of 2004, once while daughter was on her summer vacation in my home in Seattle, without even the opportunity to pack her own things. As is now apparent, the reason for this latest move was the alleged domestic violence assault incident by host mom on host dad. The hosts have also failed to notify this court of these moves, as they are required by probate code §2352 section 2 part c.


Regardless, the burden of proof required by the Kassandra H. case can clearly be shown. First, the original reason for the guardianship is, and has been absent for some time, as was evidenced at the trial to determine custody in Nov. 2002. Second, the court at that time and in other proceedings since, namely the hearing in June 2004, reaffirmed its finding that I was not an unfit parent. I can and will show the court that I am fully prepared to take care of daughter on a day-to-day basis, and that a bond has been established not only with me, but also with my extended family, including daughters's cousins, Grandparents, aunts, uncles, and other relatives. I have made arrangements for daughters school, her piano lessons, and for her continued therapy as is currently court ordered. I have also made contact with the local ward of her Church, to make arrangements for daughter to be transferred there, if she so desires to continue worship in the manner of the host family.

And the last requirement, a "significant change of circumstances that warrant a termination of guardianship" has been met multiple times; any of which is sufficient.
First, there is the fact that letters of guardianship have been issued to both host parents. There is a current restraining order against host mother, keeping her 100 yards away from daughter, as well as host dad and host children. host mom has violated this restraining order at least one time. All visitation between host mom, daughter and the host children must be supervised by a third party, both for the children's protection, and because host mom is considered a flight risk. Also, there is a petition of divorce filed in  County by host dad, citing irreconcilable differences in their marriage. Lastly, the alleged domestic violence incident against host dad is not an isolated incident. There are multiple instances sited by host dad involving host mom swinging knives, once involving daughter in 2001.

Clearly, the burden of proof has been met for termination of guardianship, regardless of the assumption in Kassandra H. that the guardians are doing a good job. The ability of host dad to make sound decisions regarding daughter as her guardian clearly must come under question, as he has allowed this situation to fester and grow worse, all while under the jurisdiction of this court to provide a stable, loving home to daughter.

It is for these reasons that I pray the court will order that the guardianship of daughter be terminated, that host parentsbe removed as guardians of the person, and that the custody care and control of daughter be returned to me, her natural father.

I declare under penalty of perjury in the states of Washington and California that the foregoing is true and correct to the best of my knowledge.



 
   

[SLYarnell]

I can post host dads dec if you think you want or need it to comment.

[SLYarnell]

In filing this, does it have to be a new petition for termination?  or a motion on the previous termination case?

[socrateaser]

>In filing this, does it have to be a new petition for
>termination?  or a motion on the previous termination case?

If there's already a judgment, and you're a party, then the proper filing would be an OSC under the already-existing case number. You are effectively seeking a custody mod.

The declaration, btw, is ok, but I would stick to the big issue, that is, the breakdown of the host relationship, and the domestic violence therein.

By the way, why haven't you asked child protective services to investigate?

[SLYarnell]

what is an OSC?

We havnt contacted CPS because to involve another agency in this already convoluted situation I cant imagine the outcome it can only be negative.  We are hoping the judge will put an end to this now for good.  

[socrateaser]

>what is an OSC?

An Order to Show Cause, in CA, is the method of asking for post-judgment relief in a case. It's a technical issue, that frankly is an anachronism in my view, but it is the doc that you probably need to file.

The kind of facts that you are describing, to me, argue for some emergency action. By delaying your filing, and not calling CPS in, you are behaving as if this were all a relaively trivial issue. The court will wonder the same thing, and that could really hurt your chances of getting a favorable ruling.