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Name: People v. DeJongh
Case #: B255784
Court: CA Court of Appeal
District 2 DCA
Division: 4
Opinion Date: 06/18/2015

Where family law court ordered a mother to take her children to the paternal grandparents’ home for an extended visit, mother violated Penal Code section 278.5 by taking the children to Mexico instead. Mrs. DeJongh had joint legal custody of her three minor children with their father, Mr. Miller. In November 2007, DeJongh and Miller entered into a settlement agreement in family court, which constituted an order of the court. The order prohibited both parents from changing the children’s residence from Los Angeles without prior written consent, and mandated that Mrs. DeJongh take the children to the paternal grandparents’ home on November 18, 2007, for an extended visit. A review hearing was set for February 2008. Mrs. DeJongh failed to comply with the visitation order; instead, she and her husband took the children to Mexico. The children were not seen again until 2011. Mr. and Mrs. DeJongh were charged with child custody deprivation (Pen. Code, § 278.5), with the victims of the offense being the paternal grandparents. Following a court trial, the DeJonghs were found guilty. They appealed, arguing that the family court order did not confer a right of visitation on the paternal grandparents. Held: Affirmed. Section 278.5 prohibits depriving a lawful custodian of the custody of a child, or depriving a person of visitation rights. Visitation means the time allotted for access to the child by court order, which, here, had been granted to the grandparents. By taking the children to Mexico instead of complying with the family court’s order to take the children to the paternal grandparents for an extended visit, the DeJonghs’ clearly violated section 278.5. The grandparents were not required to have been a party to the family court proceedings.

The parents were estopped from challenging the validity of the visitation order in favor of the paternal grandparents based on invited error. Mrs. DeJongh stipulated to the family court order allowing the children an extended visit with the grandparents, during which she and Miller were to have monitored visits. This arrangement was intended to foster reunification of the children with both parents. Mrs. DeJongh may not now challenge the validity of an order to which she agreed.

The court was not restricted to the provisions of Family Code section 3104 in ordering visitation for the grandparents. Defendants claimed that visitation rights could only be given to the grandparents under section 3104, which allows a court to grant reasonable visitation rights to a qualified grandparent who petitions for them. The grandparents did not have to petition for visitation because Mrs. DeJongh agreed to it, and section 3104 does not prohibit a parent from stipulating to a grant of visitation rights to a grandparent.