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Family Law Keyed to Weisberg
California v. Superior Court (Smolin)
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Richard and Judith Smolin were divorced in California in 1978, with sole custody of their two children being awarded to Judith, subject to reasonable visitation rights for Richard. In August 1979 Judith married James Pope, and in November his work required the family to relocate to Oregon. The Popes moved without informing Richard. Richard alleged, and the California courts found, the Popes deliberately attempted to defeat Richard’s visitation rights and preclude him from a meaningful relationship with his children by moving from Oregon to Texas to Louisiana. In February 1981 the Popes obtained a decree from a Texas court granting full faith and credit to the original California custody order. Richard was served but did not appear. Before the Texas decree was issued, Richard sought and obtained in California a modification of the California decree, awarding joint custody. The Popes were properly served but did not appear or comply with the terms of the order. In Januar y 1981 Richard instituted an action in California to find Judith in contempt and to again modify the custody decree to give him sole custody. The court granted him sole custody, subject to reasonable visitation rights for Judith. This order was also ignored by the Popes, acting on the advice of counsel that the California courts no longer had jurisdiction. Richard did not obtain physical custody for over two years. When he located the Popes in Louisiana, they initiated an adoption proceeding to sever Richard’s legal tie to the children. After obtaining a California warrant to obtain custody of the children, Richard and his father resorted to self-help. They picked up the children while they waited for their school bus and brought them to California. The Popes then submitted to the jurisdiction of the California court and instituted an action to modify the order granting Richard sole custody. While those proceedings were pending, the Popes instituted a criminal action against R ichard and his father in Louisiana charging them with kidnapping. In August 1984 the Smolins petitioned the California court for a writ of habeas corpus to block the anticipated extradition warrants, which the Superior Court orally granted after taking judicial notice of the various custody orders that had been issued. California sought a writ of mandate in the California Court of Appeal on the ground that the Superior Court abused its discretion in blocking extradition. The Court of Appeal issued the writ, and a divided California Supreme Court reversed, finding that under the full faith and credit provisions the decrees conclusively established that Richard was the lawful custodian of the children and that the lawful custodian cannot be guilty of kidnapping.
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