KWIKA wins international child custody battle in California Court of Appeal
On March 20, 2015, the California Court of Appeal, Fifth Appellate District in Fresno, agreed with the arguments presented by the KWIKA team of founder Michael Kump, partner Amber Melius, and associate Joshua Rosenberg. The Court of Appeal ruled in favor of KWIKA’s clients and summarily denied Petitioners’ request for an emergency stay and reversal of the trial court’s orders in an international child custody case.
Petitioners are two sisters married to two men who are cousins; together, the two couples have nine minor children that were born and raised in Mumbai, India. The families are members of a religious faith which is several hundred years old and has over a million followers worldwide. When their spiritual leader died in 2014, a succession dispute arose, which caused a rift between the two sisters and their husbands.
In January 2014, the sisters took their nine children and flew them from Mumbai to Bakersfield, California without the fathers’ knowledge or consent. Shortly after arriving, the sisters filed a motion in the Kern County Superior Court seeking temporary restraining orders against their husbands pursuant to California’s Domestic Violence Prevention Act, and seeking custody orders related to the minor children. Based upon the sisters’ uncontested allegations, the trial courted issued temporary orders on an ex parte basis, which included personal conduct orders and stay-away orders that restrained the fathers from contacting the sisters or the minor children. Orders were also entered that the sisters would have sole legal and physical custody of the minor children and the fathers would have no visitation rights.
The fathers filed their response denying any domestic violence, and requesting that the trial court exercise temporary emergency jurisdiction pursuant to California Family Code § 3424(a) and order that the minor children be permitted to return to India in the fathers’ custody. After a six-day trial in which the fathers were represented by a prominent family law attorney from Los Angeles, the trial court rejected the sisters’ claims of domestic violence and ordered the return of the children to the fathers’ custody. The trial court granted the sisters a limited stay of its custody orders so they could seek review from the California Court of Appeal.
Prior to the trial, the family law attorney representing the fathers asked KWIKA founder Michael Kump to represent the fathers in the Court of Appeal in order to challenge a jurisdictional ruling made in the trial court. That petition was subsequently dismissed by the fathers when the trial judge who made the erroneous ruling recused himself from the case.
But when the proceedings in the trial court had wrapped up and it was clear that the Court of Appeal would become the battlefield, the fathers’ family lawyer once again turned to Michael Kump and his team. On March 16, 2015, only a week before the trial court’s stay expired, the sisters filed a request for an emergency stay in the Court of Appeal, and also sought orders reversing the trial court’s custody ruling in favor of the fathers. The sisters’ filings included both petitions for writ of mandate and petitions for a supersedeas stay, plus over 1,000 pages of supporting exhibits. The sisters argued that they would be irreparably harmed if an emergency stay was not entered because as soon as the trial court’s stay expired, the fathers would take the children back to India. The sisters claimed that they could not return to India because they feared for their safety as a result of the religious conflict. As part of their appellate argument, the sisters also argued that applications they had filed for political asylum with the United States Immigration Department trumped any jurisdiction exercised by the California state court.
The KWIKA team of Michael Kump, Amber Melius and Joshua Rosenberg sprang into action and on March 19, 2015 – only 48 hours after the sisters filed several briefs and voluminous exhibits – KWIKA filed a 45-page opposition with the Court of Appeal. KWIKA’s opposition brief established that the stay should not be extended and that the trial court did not commit any reversible error. On March 20, 2015 – just 24 hours after KWIKA filed its opposition – the Court of Appeal summarily denied all requests for relief by the sisters. As a result, the trial court’s stay expired shortly thereafter, and the children with their fathers returned to their close-knit community in Mumbai, India, where they had been born and raised before being uprooted.