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Name: In re E.M.
Case #: D064955
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 08/05/2014

Juvenile court properly denied mother’s Family Code section 7822 petition where there was insufficient evidence of father’s intent to abandon the minors. Appellant, Sarah, and Christopher M. had three minor children together before they separated, in large part due to Christopher’s drug use. Sarah moved into James’s home and subsequently married him. The children saw Christopher on weekends. In 2012, Sarah filed for divorce and Christopher agreed to give sole custody of the children to Sarah, subject to liberal visitation by Christopher. Sarah and James then married. Christopher moved to modify the custody orders, and Sarah subsequently filed a Family Code section 7822 petition to free the children from Christopher’s custody so that James could adopt them, claiming that Christopher had abandoned the children. The juvenile court denied the petition because Sarah had prevented Christopher from seeing the children, and filed the petition in order to delay the family court proceedings and interfere with Christopher’s visitation rights. The appellate court affirmed. There was ample evidence that Christopher never intended to abandon his children. He made child support payments, maintained their health insurance, and regularly communicated with them by phone despite Sarah’s refusal to let him see them. The juvenile court properly concluded that Sarah and James had failed to meet their burden by clear and convincing evidence that Christopher abandoned his children within the meaning of section 7822. Further the court did not act in excess of its jurisdiction when it issued a temporary visitation order.