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HEMAL TRIVEDI v. JODY LYNN NICKOLOPOULOS

November 29, 2010

HEMAL TRIVEDI, PLAINTIFF AND APPELLANT,
v.
JODY LYNN NICKOLOPOULOS, DEFENDANT AND RESPONDENT.



The opinion of the court was delivered by: Jones, P.J.

Trivedi v. Nickolopoulos CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Hemal Trivedi appeals from an order that places his son Andrew in custody of his maternal grandfather and his wife. Appellant contends the trial court committed several legal errors and that some of the court's factual findings are not supported by substantial evidence. We conclude the trial court did not commit any prejudicial error and will affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant and Jody Lynn Nickolopoulos married in September 2003. In February 2005, Jody gave birth to a son, Andrew. Appellant, who is a citizen of India, was living in India at the time, and Jody and Andrew lived with Jody's mother for several months until appellant returned. Eventually, appellant, Jody, and Andrew moved into a home of their own.

Appellant and Jody had a difficult relationship and they separated in October 2007. Jody had ongoing mental health problems and in January 2009, the court awarded appellant sole physical and legal custody of Andrew.

Appellant lost his job and he began to search for a new one. On May 15, 2009, appellant left Andrew with his grandfather and step grandmother without saying where he was going or when he would return. Three days later, when the grandparents still had not heard from appellant, they filed a missing person report with the police. The police also could not locate appellant. Finally, on May 19, 2009, appellant contacted the grandparents to tell them he was in India and that he would be filing a motion to bring Andrew to India.

Appellant's counsel filed a motion asking that Andrew be allowed to move to India immediately. Counsel for Andrew filed a counter motion asking that the grandparents be granted temporary custody pending a hearing on appellant's request. On May 27, 2009, the court granted Andrew's request and denied appellant's request, ruling the grandparents would be granted temporary custody of Andrew pending a hearing on appellant's request to relocate. On June 15, 2009, the court confirmed its earlier decision ruling that the grandparents would be granted temporary custody of Andrew pending a hearing on appellant's motion to relocate.

A trial to determine where Andrew should live was conducted on December 14, 2009, and January 29, 2010. Appellant, who was representing himself by that point, appeared by telephone from India. He provided a narrative explanation of why Andrew should be permitted to live with him in India. The primary opposition was provided by counsel for Andrew who presented testimony from a clinical psychologist, Dr. Deborah Roberto, who had been treating Andrew. Dr. Roberto testified that appellant's abandonment of Andrew without saying where he was going had been traumatic for Andrew. He became inconsolable, had nightmares, and became clingy and anxious. However, the grandparents, by providing constant care and clear limits, had allowed Andrew to recover. According to Dr. Roberto, the best situation for Andrew was for him to stay right where he was with his grandparents.

The trial court considering this conflicting evidence stated that appellant's "abrupt departure last year to India, without prior notice to anyone, raises . . . concerns that [appellant] is insensitive to Andrew's emotional needs and stability. Andrew was initially traumatized by [appellant's] departure to India. To remove him from the only family with whom he has been able to develop significant attachments would be extremely detrimental to him, even apart from the difficulties he would necessarily face if [he] were required to move halfway around the world." Accordingly, the court denied appellant's request to move Andrew to India stating, "Andrew must not be subjected to further emotional trauma which would likely occur if his residence is changed at this time in his life."

Having denied appellant's request to relocate Andrew, the court turned to the issue of where Andrew should live. Appellant had not indicated he was willing to return and Andrew's counsel recommended that he be placed with his grandparents. The trial court agreed, stating: "The Court finds that [the grandparents] have provided Andrew with a stable home, fulfilling both his physical and psychological needs . . . . They have been his de facto parents for the past 9 months." [¶] . . . [I]t is in Andrew's best interest to give custody of Andrew to [his grandparents.]"

Appellant then challenged the court's ruling by ...


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