In Protracted Child Custody Litigation, Court Denies Mother’s Request for Evidentiary Hearing

balance-875413-m.jpgEveryone involved in a child custody case fares better when the matter is handled as quickly and competently as possible – especially the children. Often, these kinds of cases can elicit intense emotions and less than amicable exchanges between the parents. But the parties must keep in mind that the children are at the center of their dispute. And while there are certainly complicated custody cases that will take some time to sort through, parents and their attorneys must always prioritize what is in the best interests of the child – every step of the way. If you are facing a child custody dispute, it is critical that you contact an experienced San Diego family law attorney as early as possible in the proceedings – to help facilitate an efficient and satisfactory custody resolution.

A California judge recently described a family court case as “incessant, unending” child custody litigation. While there were many issues that arose during the eight-year long battle, the court of appeals was asked to decide whether the trial court abused its discretion in failing to hold an evidentiary hearing on the father’s request to move to Florida with the children. Here, the parents were married in 1994 and separated in 2004. At that time, their two sons were ages seven and four, respectively. In 2009, the court awarded the parties joint legal and physical custody of the boys. The original court order was modified on several occasions because the children failed to follow the custody order.

For instance, one of the boys ran away from the mother’s home and began living with the father. The other son, stopped communicating with the father and the mother was awarded sole physical custody of him. The court appointed counsel for each child. Some time later, the boy who was living with the mother ran away to the father’s home. In 2012, the father filed notice of intent to relocate to Florida with both children, then ages 15 and 12. The mother opposed the move. A child custody mediator got involved and recommended a new custody evaluation. The mother requested an evidentiary hearing under Family Code Section 217.

The trial court denied the request and approved the “move away,” awarding the father sole legal and physical custody of one son, and the mother, primary custody of the other son. The mother appealed the court’s decision not to hold an evidentiary hearing. Under California law, parties typically have a right to call witnesses to testify at a family law proceeding. But in this case, the trial court concluded that it found good cause to decline to hear any further testimony, pointing out that the case had been in this court for many years, with many volumes of notes, testimony and other information. The court emphasized that the children “have been in the middle of their parents’ constant custody and visitation litigation” for eight years.

The court of appeals upheld the evidentiary decision, concluding that the lower court is entitled to broad discretion under the statute. Here, counsel for the father and for the children agreed that no further evidence was necessary, and the mother was unable to identify any new, relevant information that would be disclosed during live testimony.

While this is an unpublished decision, and may not be cited or relied on by parties, the underlying reasoning that forms the basis of the opinion could very well inform other courts in this jurisdiction. This case is a good example of the importance of consulting an experienced family law attorney who will make it a priority to focus on the best interests of the children in a custody dispute.

If you are a parent with questions about child custody matters, you are encouraged to contact Doppelt & Forney. Mr. Doppelt is an experienced family law attorney and has been representing parents involved in child custody disputes for more than 20 years. Doppelt & Forney serves clients throughout Southern California, including San Diego, Encinitas, La Jolla, and Chula Vista. For a free consultation, contact Doppelt & Forney through our website, or give us a call toll-free at (800) ROY IS IT (769-4748).

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