Statements of Decision, part 2

Last month we covered the requirement that a request for statement of decision must specify the “controverted issues” on which the party is requesting a statement. We also discussed what level of detail can be demanded from the court in making its proposed statement, concluding that the judge need only explain her decision with respect to the “principal controverted issues” in the case. In drafting your request, I encourage family law practitioners to frame your requests for findings on particular issues in a neutral, collaborative way; avoid being argumentative.

Sample request for statement of decision, and proposed statement
A brief example applying some of these principles may be helpful, loosely based on a case I was involved with a few years ago. The case involved a teenage daughter, living with her mother in California. She also spent summers and regularly visited her father in Washington State. He periodically visited his daughter in California, attending school and dance events. The mother had since married, and the stepfather assisted with the child’s care. Tragically, the mother contracted cancer and eventually passed away. In her will the mother named the stepfather as her desired guardian; she had also made clear her desire that the child remain in her community here.

The father, who had had joint custody, planned to move her to Washington, where the child also had relatives, excellent educational resources and a ballet school. The step-father filed a petition for guardianship, alleging the child’s friends, her school, ballet teacher and community were here, and that the girl desired to remain in California.

Family Code section 3040 governed, establishing as a first preference placement with “both parents jointly ... or to either parent ....” As a second preference, if to neither parent, then to “the person or persons in whose home the child has been living in a wholesome and stable environment.” Further, pursuant to section 3041(a), before making an order granting custody to a person other than a parent and over the objection of a parent, the court must make a finding that granting custody to a parent would be “detrimental to the child” and that granting custody to the nonparent is required to serve the best interest of the child. At the same time, under 3041(c), “detriment to the child” is defined to include the harm that removal from a stable placement of a child with a person would cause, if that person “has assumed, on a day-to-day basis, the role of his or her parent,” fulfilling the child’s physical needs and psychological needs, “for a substantial period of time.”

While by no means exhaustive, the following are illustrative of proper questions identifying principal material issues of fact for inclusion in a proposed statement of decision in this case:
• Did the father previously have joint legal and physical custody of the child? Does he now have sole custody?
• Did the father previously exercise his right to custody and enjoy a significant parent-child relationship with the child?
• Did the child have significant familial and community ties in Washington? In California?
• Did the stepfather have any legal claim to custody of the child?
• Was the child “placed” with the stepfather within the meaning of section 3041?
• Did the stepfather assume, on a day-to-day basis, the role of the child’s parent? If so, was it for a “substantial period of time?”
• Did the father ever surrender his parental role to the stepfather?
• Did the father consent to a guardianship in favor of the stepfather?
• Would it be detrimental to the child to allow her father to relocate her to Washington State?

A partial proposed statement of decision might read something like this:
“There was a long-standing joint custody and parenting arrangement between the father and mother of the child. For most of the child’s life, the father was actively involved in his daughter’s life. The child spent summers and school breaks in Washington. The father made regular extended visits to California to participate in holiday celebrations and to see his daughter’s dance performances. He also spend two weeks a year helping in their daughter’s classroom at school. He spoke regularly with her teachers and was involved in her schoolwork. The father also regularly visited with the child by phone, email and text.

“For most of the child’s life, until her mother became gravely ill, the mother, not the stepfather, was the primary parent in the household. The stepfather assisted with many parenting duties while married to the mother. He would take the child to school, to dance class, make her breakfast and spend time with her. But the father never surrendered his role as father to the stepfather. The daughter was never “placed” with the stepfather within the meaning of section 3041. The stepfather has no legal right to custody.

“The father does not consent to a guardianship so that the child may remain in California. Because the mother has passed away, the father has sole custody of the child. As the father with sole custody, he has the right to move her to Washington to be with his extended family, absent a finding of detriment as provided by Family Code § 3040. The daughter will be sad to leave her friends, her school and her ballet teacher in California. But these feelings will pass, and she has a loving home, relatives and a community in Washington to welcome her there. It will not be detrimental to the child to allow her father to move her to Washington to live with him.”

This case had strong feelings on both sides and a riled up local community. The resulting statement of decision was balanced yet decisive and complete, all while pointing the way toward reconciliation and closure: it was a masterful job by the trial judge.

A Final Tip When consulted immediately post-trial in anticipation of an appeal, I have on occasion crafted a specification of material issues which might include, for a few key questions, a separate and very brief  “explanation.” In the accompanying explanation, I have set forth the elements to be proved and the significance of one or two key pieces of evidence to those elements. In this way I have separately stated a proper, non-argumentative request for finding while gaining the opportunity for a tiny argument on the point. Use this tip, if at all, sparingly! Opposing counsel may well object, perhaps strenuously, and who knows what the judge might think.

Conclusion Family attorneys involved in a short-cause trial expected to last less than 8 hours would be well-advised to draft beforehand a document specifying the anticipated principal controverted issues, and either modify it on-the-fly to be presented orally, or have it in a form to present to the judge before submitting the case for decision. Litigators involved in longer trials have the relative luxury of 10 days following announcement of the tentative decision to file a request for statement of decision, which must specify the principal controverted issues to be addressed. Some care must be exercised in drafting the request, in making proposals for the statement, and in making proper objections to a proposed statement. If an appeal ensues, your client’s eventual success may well depend, at least in part, on how well you handled the statement of decision process.