Family Code Section 3040

Often in child custody litigation, the court has to make a tough call as to the physical time share. Family law litigators often advise clients not to demonstrate a “bad attitude” in conjunction with the sharing of custody, or exercise of visitation of children with the other party. A demonstration of “bad attitude” by a party can not only be one of the compelling reasons why the court doesn’t award that party custody, but as demonstrated in the recent Appellate case of In re Marriage of Dupre (CO 46938) same can also lead to monetary awards against a party and their attorney.

In the case of In re Marriage of Dupre, the mother had shared custody of the parties’ 9-year old daughter J. However, upon learning that J. had had some inappropriate sexual contact with the 8-year old daughter of mother’s boyfriend, father sought an ex parte custody order suspending mother’s custody/visitation rights with the minor child. The ex parte order was granted, pending a Family Court Services (FCS) investigation. The investigation report by FCS was released three days later and the report indicated that J. had not been sexually molested but had engaged in mutual sexual experimentation with a like-age child, a normal part of childhood sexual development.

Mother then went to court and requested that the FCS report recommendation be adopted and her custodial rights restored. The Trial Court adopted the recommendation of the FCS report, and the court also issued a mandatory Order to Show Cause for Family Code Section 3027.1 sanctions.

Family Code Section 3027.1 provides that if false allegations of child abuse or neglect are made during a child custody proceeding, and that the person making the accusation knew it to be false at the time the accusation was made, the court may impose monetary sanctions against the party, a witness or the party’s attorney.

By the time the sanctions motion was heard, the original judge issuing the Order to Show Cause had retired. At the sanctions hearing, the attorney for the father argued that Family Code Section 3027.1 required that in the underlying custody hearing there had first to be a finding that the allegations of abuse were false and knowingly made. Since such a determination had never been made, father contended that mother was now precluded from seeking Family Code Section 3027.1 sanctions. The mother objected to that interpretation of the code section. Mother also requested that the court take judicial notice of the entire FCS report.

The trial court denied the appropriateness of the issuance of the Order to Show Cause for Family Code Section 3027.1 sanctions because “the issue of falsity must be adjudicated in the underlying custody proceeding”. Further, the trial court denied mother’s request that the court take judicial notice of the FCS report in that only the recommendation had been adopted for the court’s order, and the rest of the report consisted of hearsay information.

Mother appealed, and the Appellate Court granted mother’s right to proceed under Family Code Section 3827.1, but denied mother’s request for the court to take judicial notice of the entire FCS report.

First, after discussing some procedural problems in mother’s request for appellate review, the Appellate Court stated that a simple reading of Family Code Section 3027.1, does not require that the issue of falsity of the accusation first be determined in the underlying custody hearing. As the court states:

“Nothing in the wording of Section 3027.1 supports an interpretation requiring the finding underlying the sanctions to be made during the custody proceeding. To read such a requirement into the statute runs afoul of our duty to refrain from rewriting a statute ‘to make express and intention that did not find itself expressed in the language of that provision’. (citing cases)… The statute requires a false statement be made during the child custody proceeding… The statute does not require a falsity to be established during the child custody proceeding.”

The Appellate Court also noted that the statute specifically refers to “any person” (witnesses or attorneys). The Appellate Court, favorably quoting extensively from mother’s appellate brief, stated:

“It makes no sense that the legislature would have intended the parties to a temporary custody proceeding to stand aside while non-party litigants and/or a combination of party and non-party litigants to a Section 3027.1 sanction motion tried the issue of falsity and knowing falsity in that custody proceeding, before the temporary custody proceeding could be concluded. …we find mother’s argument persuasive.”

However, the Appellate Court did not feel that the trial court had abused its discretion by not taking judicial notice of the entire FCS report. The Appellate Court succinctly stated so as follows:

“… We find no error. Judicial notice is the recognition and acceptance by the court of the existence of a matter of law or fact that is relevant…. However, while the courts are free to take judicial notice of the existence of each document in the court file, they may not take judicial notice of the truth of hearsay statements in …. court files. The courts may not take judicial notice of allegations and affidavits, declarations and probation reports in court records because such matters are reasonably subject to dispute and therefore require formal proof (citing cases).”

The Appellate Court remanded the Order to Show Cause for sanctions per Family Code Section 3027.1 back to the trial court. A factual determination as to whether father knew the allegations to be false will now have to be made.

The court has other tools at its disposal ifone party demonstrates a “bad attitude” regarding custody awards. Pursuant to Family Code Section 3027.5(b), the court can order supervised visitation to a party making false allegations of sexual abuse.

This bad attitude standard can also be a factor in the court making the overall determination of custody. As Family Code Section 3040 states, the first preference for granting custody of a minor is to the parties jointly. However, the next preference is to either party. The only statutory guideline given to the court in determining which party should be awarded custody is stated as follows:

“In making an order granting custody to either parent, the court shall consider,… which parent is more likely to allow the child frequent and continuing contact with the non-custodial parent…”.

Family Code Section 3040 is often referred to as the “friendly parent provision”. A party who demonstrates a “bad attitude” towards the other party, which manifests itself in the diminution of contact with the child/children of the relationship, may very well fail this statutory te