Articles Posted in Child Custody & Visitation

There are many things you have to consider when you decide that it is necessary to go to court regarding the custody of your child. Aside from the many factual elements that may go into your case, there are some very basic legal issues that could make or break your effort to get your case heard and decided in your favor. One such issue is jurisdiction because, if the court where you file your case doesn’t have it, the judge cannot give you the relief you’re seeking, no matter how strong the factual side of your case is. In one case originating from San Bernardino County, the Fourth District Court of Appeal ruled that a father could pursue custody in the California courts, since this state qualified as his child’s “home” state, and, as a result, the court here did have jurisdiction to rule on his petition.

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When you go to court in a custody or visitation matter, there are a variety of options available to the judge in your case. As a recent ruling from the Second District Court of Appeal demonstrates, one component of your custody or visitation order may involve making drug screening a condition of custody or visitation if one of the parents has a history of drug or alcohol abuse. What’s more, the law covering this testing says that the court can make the parent continue getting tested for as long as the court deems appropriate.

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Today, there are many different types of families. Whether they look like fictional families from cinema (such as Three Men and a Baby) or real-world situations involving gay and lesbian parents, there are a variety of circumstances in which someone who isn’t a biological or adoptive parent might be placed in the role of parenting a child. For people in these situations, which legal rights do they have regarding that child? A recent Sixth District Court of Appeal case tackled that question, ruling that a child could possibly have three legal parents, allowing an uncle who was essential the only father-figure his niece had ever known to continue his fight for parental recognition.

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There are state laws applicable to every aspect of a family law case. The California Family Code governs actions for divorce, spousal support, child custody, and many of the attendant issues to be resolved. Courts interpret such laws in light of the facts and evidence presented in each case. For this reason alone, it is important to understand how these myriad legal provisions may affect your family’s rights now and in the future. An experienced family law lawyer from the local San Diego area would be able to guide you through the California divorce process as seamlessly as possible.

One of the highly regulated areas of family law concerns the physical and legal custody of children. Courts are guided by the following principle:  which arrangement promotes the best interests of the child. Under the law, custody orders may be modified if the parent seeking the modification can show that there has been a “change in circumstances” sufficient to warrant the modification. In a recent custody case, the father lived in California, and the mother lived in Virginia. The court entered a permanent custody order giving the father (a Bay Area resident) physical custody of the child during the school year and the mother physical custody during the summer.

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One of the lesser-known legal hurdles in a family law case concerns the appropriate jurisdiction within which to bring your claims. Whether it is an action for divorce, child custody, spousal support, or any other related matter, parties must ensure that the court has jurisdiction to hear and decide the case. In considering the question of jurisdiction, courts often look at whether one location is a more “convenient forum” than another. Before couples are able to address the substance of their family law case, they must establish the appropriate jurisdiction. In order to move your case along as efficiently as possible, it’s important to contact a local San Diego family law lawyer who would be able to quickly identify the most suitable court for your case.

Issues concerning the appropriate forum often arise when the parties live in two different states. Section 3427 of the California Family Code provides that a court that has jurisdiction to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum.

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A divorce typically affects all of the members of the family concerned. When the separating couple has children, even the grandparents may experience a certain loss. If children are involved, the divorce proceeding likely will include either an agreed-upon parenting arrangement or a court-ordered one. Unfortunately, in many cases, the court must get involved to allocate child custody and visitation, taking into account the best interests of the child or children. Courts have the statutory authority to grant grandparents visitation rights under certain circumstances. If you are considering divorce and want to be sure that your rights will be protected, you are encouraged to contact an experienced family law attorney as soon as possible.

In California, there are three separate laws that expressly address grandparent visitation:  Family Code Sections 3102, 3103, and 3104. In a recent divorce case, the court was asked to interpret and apply Section 3104 (a), which provides in part that a grandparent of a minor child may petition a court for reasonable visitation rights. In order to grant the petition, the court must:  1) find that there is a preexisting relationship between the grandparent and grandchild that has created a bond rendering visitation in the best interests of the child; and 2) balance the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority.

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Couples who separate and are seeking to divorce often do not agree on many of the myriad items to be resolved at the end of their relationship. One of the most fraught issues concerns the court’s custody determination:  the ultimate physical and legal custody arrangement. Such a determination will likely affect the amount of child support awarded as well. California courts apply the “best interests of the child” standard when allocating custody and visitation between the parents. Since this issue, and many others, can dramatically affect your family’s future, it is extremely important to protect your interests as well as your child’s. An experienced San Diego family law attorney would be able to guide you through the often complicated process while preserving your family’s legal rights.

Some child custody disputes involve a parent who wishes to relocate with the child to another state or country. And in some cases, a parent may try to take a child to another country without the proper authority or approval. The Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) provides a contracting nation (a signatory to the Convention) with the authority to have a child returned to his or her country of “habitual residence” if wrongfully removed to – or retained in – the contracting state. Under the Hague Convention, state and federal courts in the United States have concurrent jurisdiction to decide such custody cases.

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When a divorce or separation case involves children, the parties must address additional considerations that will affect the family down the road. Issues such as legal and physical custody and visitation (or “time-share”) must be resolved, either by mutual agreement or an order of the court. California courts have the authority to issue various kinds of visitation orders in child custody cases. The underlying goal is to find a suitable arrangement that serves the best interests of the child under the circumstances. It is important to understand your family’s rights in a child custody and visitation proceeding. You are encouraged to contact an experienced San Diego family law attorney, who can sort through the legal requirements in order to protect your rights.

“Visitation” is usually part of a custody order and is commonly understood to be the plan for how parents will divide time with their children. Depending on the situation, visitation can take place according to a schedule, or it may be unscheduled (“open-ended”) but “reasonable.” In some cases, courts will order “supervised” visitation, or no visitation at all. In order to be able to enforce a custody and visitation arrangement, the parties must present the plan to a judge. Once the judge signs the document, it becomes a court order, enforceable by either party. If circumstances change, such as the children’s schedules, the location of the parties, or any other item affecting the arrangement, either party may file an application with the court to modify the existing custody and visitation order.
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In most divorce cases, the separating spouses want the proceedings to be over as soon as practically possible. They often attempt to cooperate with each other (and each other’s counsel) to resolve the major issues in an efficient manner. Conducting the proceeding in this way serves to benefit the parties by reducing costs and limiting any attendant emotional turmoil. Unfortunately, however, some cases drag on, often due to the “vexatious” approach of one of the parties. An experienced family law attorney would be able to address and hopefully minimize or completely deter such conduct. If you are considering a separation or divorce, it is important that you contact a local San Diego family lawyer as early in the proceedings as possible.

The California Family Code offers some recourse to parties who are up against a vexatious litigant. For instance, section 271 authorizes a court “to base an award of attorney fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.” In a recent divorce case, the court of appeals reviewed a trial court’s order requiring an ex-wife to pay her ex-husband and his second wife a combined amount of costs and fees under section 2030 and section 271 of the Family Code, without distinguishing between the two provisions.
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After divorce, a parent hoping to change or modify an existing custody order must petition the court and present evidence of a “change in circumstances” that warrants the modification. In California, courts typically favor maintaining an existing custody arrangement, citing the paramount need for continuity and stability in a child’s custody situation. In fact, courts have expressed some reluctance to make changes except for imperative reasons. Disputes over child custody and visitation arise far too often in divorce and separation cases. In order to protect your rights, it is important to consult with an experienced family law attorney from the San Diego area, someone who understands the laws applicable to cases filed in the local area.

One of the grounds for a modification of custody is conduct by a custodial parent that is designed to frustrate the other parent’s visitation and relationship with the children. In a recent California case, the mother appealed a court’s ruling that granted the father’s request for a modification of child custody. Here, the couple got married in 1996 and had four children together. During their divorce in 2010, the court ordered joint legal custody, and the children’s primary residence was to be with the mother. The father was entitled to visitation every other weekend.
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