Articles Posted in Child Custody & Visitation

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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Laws governing marriage and divorce vary from state to state. In California, if one spouse decides to file for divorce, the court has the power to end the marriage, even if the other spouse does not agree or want to get divorced. Accordingly, the party served with divorce papers may respond in several ways: 1) by doing nothing or failing to respond, which is considered a “true default” and means that the spouse filing the petition will get everything he or she is asking for; 2) by doing nothing, but with an agreement setting forth the terms of the divorce; 3) filing a response and reaching an agreement, also known as an “uncontested” divorce; or 4) filing a response, but disagreeing with the spouse’s requests, or a “contested” divorce. Whether you are filing for divorce or responding to a petition, you are strongly encouraged to contact a local San Diego family law attorney as early as possible. The form of the petition and response can significantly affect your rights throughout the proceedings.

A recent California case illustrates some of the complications that can arise when one spouse fails to respond to a divorce petition. Here, the husband filed for divorce in October 2011, seeking joint custody of the couple’s two children. The wife did not file a response, although she was present in the courtroom during the proceeding, and the court granted the divorce via a default judgment in February 2013. As part of the dissolution of marriage, the court also granted the couple joint legal custody and gave each parent approximately 50% of physical custody.
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A court-issued child custody order typically includes a determination of legal and physical custody, as well as the amount and type of visitation. Under California law, courts will endeavor to craft an arrangement that serves the best interests of the child. Some of the items a court will look at include the child’s age and health, the relationship between the parents and child, each parent’s ability to care for the child, any history of substance abuse or family violence, and the child’s connection to home, school, and the community. Custody and visitation are two of the most important issues to resolve in a separation or divorce proceeding. To protect your family’s rights, it is important to consult with an experienced San Diego family law attorney as early as possible in the process.

It is important to remember that in California, a court can grant either parent custody of the children, or the parents can share custody. For all parties involved, including the children, it is ideal if the parents are able to agree to the custody and visitation arrangement (also known as a “parenting plan”). And while a judge has the authority to make the final decision about custody and visitation, he or she typically will approve the parents’ mutually agreed upon arrangement. If the parents cannot agree, the judge will render a decision at a court hearing. In some unfortunate cases, one parent, or even the children, may fail to heed the court-ordered arrangement.
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Child custody disputes tend to bring out intense emotions in both parents. This can be attributed to the notion that each party typically wants to spend as much time as possible with their children after the divorce. And while it is important to sort through the most practical and visible aspects of a custody arrangement, such as who the child lives with and which parent is responsible for making significant decisions in the child’s life, there are some less obvious matters that often must first be addressed. One underlying, yet important issue concerns a court’s authority in the first instance, to make custody determinations affecting the parties. There are state laws that specifically govern child custody disputes. It is important to know how these laws apply to your divorce or custody case. In order to protect your family’s rights, you are encouraged to contact an experienced family lawyer from the local San Diego area as soon as possible.

California law sets forth the conditions under which a court may exercise jurisdiction over a family custody dispute. The Uniform Child Custody Jurisdiction and Enforcement Act is codified at Section 3421 of the California Family Code. The law addresses, among other things, a court’s authority to “make an initial child custody determination.” The law may invoked when the parents – individually – seek a custody determination from two courts in two different states.
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In what a federal court has described as an “unprecedented situation,” Gossip Girl star Kelly Rutherford is seeking help from the White House in an effort to bring her children, now ages eight and five, back to the United States. In an earlier blog post, we reported on the difficulties Rutherford was experiencing when a California court ruled that her children could remain in Europe with their father – a German businessman. The ruling stemmed from an ongoing custody battle between the parents and culminated in a ruling allowing the kids to stay with their father, who allegedly lost his visa and was not permitted to enter the United States. Child custody disputes are often the most emotional aspects of a divorce proceeding, especially if the parents live in different countries. For any child custody or support issue, you are encouraged to protect your rights by contacting an experienced family law attorney from the San Diego area, as early in the process as possible.

In California, parents may agree to the terms of a “parenting plan,” which essentially describes the child custody and visitation arrangement to be followed by the divorcing couple. Like any agreement, the terms may be general or specific and address any number of issues. If you are able to agree to the terms and draft your own plan (as opposed to the court crafting the arrangement), you will still need the court to sign off on the document. Once a parenting plan is signed by the parents and the judge and filed with the court, it becomes a court order. When thinking about the breadth and content of your potential custody and visitation arrangement, it is important to focus in large part on the particular needs of your children. Every single family case is different, and it is important to take into consideration the best interests of your child.
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Family law cases come in all shapes and sizes; no two divorce proceedings are alike. But certain aspects of divorce are fairly predictable, especially when you know what to expect. The California Family Code, in conjunction with established case law, governs most procedural and substantive issues that may arise. Some of the more common items include the division of marital property, child custody disputes and spousal support. It is important to understand how these laws will impact the circumstances of your case, and particularly, your family’s rights down the road. The best way to ensure that you are adequately represented is to contact an experienced family law attorney who is fully aware of the local laws affecting cases brought in and around the San Diego area.

Of the issues to be resolved, child custody and visitation matters are often the most hotly contested. It is not difficult to understand why. Parents, who are splitting up, typically want to spend as much time with their children as possible — and may not see eye-to-eye when it comes to physical and legal custody. In a recent California divorce case, In re Marriage of Green, the parents were embroiled in a highly contentious custody battle. Once a court issued a temporary custody order transferring “sole physical custody” from the mother to the father, the mother fled to Canada with the couple’s three minor children. Under California law, when a judge issues a child custody ruling, it becomes a court order and has the force of law. Taking children out of the country in violation of a custody order can be considered “child abduction” and a serious crime.
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In many divorce cases, spouses find it difficult to reach a mutually agreeable child custody arrangement. Parents are typically at odds with respect to the logistics and parental responsibilities in a custody dispute. There are specific matters to resolve, namely “legal” and “physical” custody, as well as a visitation schedule. But it is important to keep in mind that California law governs virtually every significant element of a divorce case, including the Family Code, the Code of Civil Procedure, the California Rules of Court, and local court rules. For this reason alone, anyone going through a divorce proceeding is strongly encouraged to contact an experienced family law attorney from the local San Diego area to help sort through the various legal steps involved in the case.

In a recent California custody case, the court identified the above-referenced legal procedural rules as “commands” implemented to ensure the fairness of the proceedings. In this case, the parties were married in 2003 and have two children. The couple separated in 2006 and divorced in 2008. Under the divorce judgment, the parents were granted joint legal and physical custody. Several years later, in July 2014, the mother sought a court order allowing her to move to Washington with the two children. The father opposed her request.
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Child custody issues typically arise within the confines of a divorce or legal separation proceeding. But couples who have never married and have a child together could still face legal obstacles if they separate and cannot agree to a parenting plan governing child custody or visitation. In such a situation, there could also be matters of paternity to address. California family law dictates in large measure the procedures to follow when trying to sort through any custody and visitation issue. Fortunately, an experienced San Diego family law attorney can help parents resolve any legal issues resulting from a divorce or related proceeding.

California, like many states in the country, has adopted the Uniform Child Custody Jurisdiction and Enforcement Act, widely known as the “UCCJEA.” It is codified at section 3400 et seq, and it sets forth when a state court has jurisdiction to render an initial child custody determination. While the statutory provisions may appear to be somewhat straightforward, there are times when the court must intervene to interpret the language, depending on the particular circumstances or facts before the court. A good example of this is a recent case where the California appellate court was called upon to resolve a dispute between two parents over the custody of their very young child.
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When spouses are enmeshed in a divorce proceeding, they often do not see “eye to eye” on matters of child custody. In many cases, both parties want to be able to spend as much time with their children as possible after the divorce. Unfortunately, disputes over custody can be intense and emotionally difficult for all of the parties involved. Keep in mind that in any child custody case, the court will seek to protect the best interests of the child, especially when parents are unable to agree on a parenting plan. To be sure your rights are protected in a child custody or divorce matter, you are encouraged to contact an experienced San Diego family law attorney who is fully aware of the local laws applicable to your case.

Under the California Family Code, Section 3111, if parents are contesting custody or visitation, the court has the authority to appoint a child custody evaluator to conduct a custody evaluation in cases where the court deems it to be in the best interests of the child. In a recent marital dissolution case, the court appointed a child custody evaluator to evaluate this “hotly contested” custody matter. The evaluator was involved in the case from the fall of 2012 through the spring of 2013. In April 2013, the mother petitioned the court for the removal of the evaluator and to strike her evaluations due to bias. At the hearing on the motion, the mother’s attorney argued that the evaluator’s emails established bias in favor of the father, warranting her removal.
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