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In Re the Marriage of Jayraj and Bindu Nair. v. Bindu Nair

March 25, 2011

IN RE THE MARRIAGE OF JAYRAJ AND BINDU NAIR. JAYRAJ NAIR, APPELLANT,
v.
BINDU NAIR, RESPONDENT.



Super. Ct. No. SDR0026925

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

Marriage of Nair CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Since February 2006 Jayraj Nair (father) and Bindu Nair (mother) have engaged in a nonstop, acrimonious battle for custody of their two children. This is the fifth time that father has asked us to review family court rulings concerning the children. (See Nair v. Superior Court (Mar. 11, 2010, C064338) [summary denial of petition for writ of mandate] (Nair IV)); In re Marriage of Nair (June 10, 2010, C061097 & C062004) [nonpub. opns.] (Nair III)); In re Marriage of Nair (Dec. 29, 2009, C059661) [nonpub. opn.] (Nair II)); Nair v. Superior Court (May 28, 2009, C061761) [summary denial of petition for writ of mandate].)

Father is currently subject to a restraining order issued against him under the Domestic Violence Prevention Act (DVPA). (Fam. Code, § 6200 et seq.)*fn1 The restraining order originally issued in March 2009 to prohibit father from making any direct or indirect contact with mother and the children for a period of one year. We affirmed the validity of the original restraining order in Nair III (June 10, 2010, C061097 & C062004).

While the appeal in Nair III was pending, father sought to engage in discovery to undermine the credibility of Janelle Burrill, Ph.D. Dr. Burrill's testimony constituted a large part of the evidence relied upon by the trial court in issuing the DVPA restraining order. Shortly after we affirmed the restraining order, mother moved for a renewal of the restraining order. The trial court granted the motion and renewed the restraining order for three years.

Father appeals, contending (1) the trial court denied him due process by precluding him from conducting discovery, (2) his due process rights were further undermined when the trial court denied him an evidentiary hearing prior to extending the DVPA restraining order, and (3) insufficient evidence supports the three-year extension of the restraining order.

Mother argues that the order denying father's discovery motions is non-appealable. Thus, she urges us to limit our review to the validity of the DVPA restraining order's renewal.

We shall conclude that father's notice of appeal allows for review of both the denial of his discovery motions as well as the order renewing the DVPA restraining order. However, we deem father to have forfeited his claim of error with respect to his discovery motions because he has failed to properly present the argument. As to father's argument that he was wrongly denied an evidentiary hearing prior to the renewal of the DVPA restraining order, we conclude that the contention has merit. Denial of an evidentiary hearing does not allow a person who is potentially subject to a multi-year restraining order to fairly question the admissibility, credibility, and weight of evidence proffered in support of the restraining order. Renewal of a DVPA restraining order requires more than the opportunity to file written declarations in support of a party's position. Accordingly, we shall reverse and remand the matter for an evidentiary hearing on mother's request to renew the DVPA restraining order.

FACTUAL AND PROCEDURAL HISTORY

In setting forth the factual and procedural history of this case, we draw in part on the recitation of facts and procedure as recounted in our unpublished opinion in Nair III (June 10, 2010, C061097 & C062004), of which we take judicial notice. (Evid. Code, §§ 451, 452, subds. (a) & (d), 459.)

In February 2006 father petitioned for dissolution of marriage. In February 2008 trial was conducted on the issues of custody and visitation of the children (one born in 1996, the other in 2003). In March 2008 the court issued a ruling in which it awarded the parents joint legal custody and found that the long-term best interests of the children required joint physical custody. However, the older child's alienation from his mother required therapy to repair that relationship. The ruling after trial was served on April 1, 2008. Within weeks, father and mother filed new motions regarding issues of custody and visitation.

On May 29, 2008, mother filed a motion to remove the older child from father's custody. On June 9, 2008, the trial court denied the motion without prejudice and noted: "The proper remedy for enforcement of the court's orders is an [order to show cause] in re contempt; removal of [the older child] from father's custody is within the jurisdiction of county counsel's office by way of a Welfare and Institutions Code section 300 proceeding."

On February 10, 2009, an ex parte hearing was held on mother's request for emergency orders to prevent contact with her and the older child by father. The next day, the court issued sua sponte a temporary restraining order and scheduled a hearing on a DVPA restraining order for March 2, 2009.

Father was served with the temporary restraining order during a hearing on February 20, 2009. While father was in court during the hearing, the older child was taken in handcuffs from father's home and placed in the Sutter Center for Psychiatry in Sacramento. He was disallowed from having any contact with his father, teachers, friends, or neighbors. He remained at the psychiatric facility until March 3, 2009, when he was released to his mother.

On March 10, 2009, father and mother attended a hearing on the request for a permanent DVPA restraining order. Mother testified that father was physically abusive toward her in 1996 and 1997. During 1996 father kicked the older child. Mother also reported that the younger child told a therapist that father threatened to kill or hurt her. Mother testified that father's anger issues caused her to fear for her safety and the safety of the children.

During the hearing, mother called Dr. Janelle Burrill, who had been appointed by the court to serve as a reunification therapist. Dr. Burrill testified that the younger child reported a threat by father to kill mother. Dr. Burrill also testified that she believed father remained a threat to mother's safety, lacked impulse control, suffered unstable moods, lacked empathy, and exhibited sociopathic behaviors. Mother also introduced Dr. Burrill's supplemental reunification report, dated February 6, 2009. The report stated, "I usually do not find many allegations of domestic violence in Family Law to be valid, particularly at the time of dissolution. In this case, I have witnessed behaviors of the person Mother and Minor lived with and they are not normal and anyone could be at risk who gets in his way. Father presents a serious risk of physical harm to Mother and to [the older child] and probably [the younger child, if he has contact. After all Father has told both Minors mom is to be killed."

On March 13, 2009, the court granted mother's request, and a DVPA restraining order was filed on March 25, 2009. The order prohibited father from having any contact with mother or the older child for a period of one year. Father was allowed supervised visitation of the younger child.

An attachment to the restraining order notes, "The evidence on which the court relies is contained in the reports of Dr. Burrill and the comments of other court-appointed therapists in this case, as well as the following evidence: testimony of Kelly Graham regarding the child's extreme reaction to mother's presences on the child's school campus; evidence of father not fully complying with court orders reflecting lack of commitment to engage in the counseling and reunification program laid out by the court; evidence of father's desire to control things by taking [the older child] to an unauthorized therapist, by using father's own doctor for a psychiatric evaluation instead of relying on neutral court evaluators, by extremely inappropriate conduct in having [the older child] pay for his own counseling sessions, and by evidence that father has not undertaken any supervised visitation with [the younger child]. [¶] . . . [¶] The court reaffirms that it is not in the best interests of [the older child] for father to have any contact at this time. The court finds that contact between father and [the older child] will substantially undermine the ...


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