Divorce is difficult. When there are children involved, the process can become even more complicated and fraught with strong (often opposing) personal views as to the best interests of the children. In some cases, the juvenile court and the family court may both have reason to address a family’s dispute or child custody situation. The interplay between the two courts requires a thorough understanding of each court’s jurisdiction and authority to decide certain issues. If you are considering divorce, it is important to consult with an experienced San Diego family law attorney before proceeding with your case. Understanding your rights as early as possible in the process is an effective and reassuring way to initiate any family law matter.
Unfortunately, some cases involve spouses who find it extraordinarily difficult to resolve child custody issues. In a recent California case, In re Marriage of Hartnett, the parties have been engaged in an ongoing custody dispute described by the court as a remnant of a highly contentious divorce. In 2008, the family court granted the father and mother joint legal custody of their one daughter, but it awarded primary physical custody to the father. This decision was based on an earlier child custody evaluation. In 2010, after a second evaluation was conducted, the court modified the custody determination awarding the father full legal and physical custody of their daughter, while granting the mother unsupervised visitation.
However, two months later, the juvenile court found evidence under Section 300(c) of the Welfare and Institutions Code that the child was at substantial risk of serious emotional damage from the mother if it did not assume jurisdiction. In November 2010, the court declared the child a dependent of the court and removed her from her mother’s care and custody and placed her with her father. In 2012, the family court reversed the November 2010 jurisdictional order and vacated the juvenile court’s judgment and all subsequent, related orders. The court held that there was no evidence that the child was at risk of serious emotional damage had the juvenile court not assumed jurisdiction, and that the family court could now enter orders addressing custody, visitation, and the like.
At this point, the mother moved in family court to modify custody and an earlier ruling of supervised visitation. After a four-day trial, the court denied the mother’s requests, except to allow supervised visitation to take place in California and New York. She appealed, arguing that the family court abused its discretion by: 1) not removing the supervised visitation requirement, since it was not included in the family court’s last valid custody order and was only ordered by the juvenile court, which was overturned by this court, and 2) not modifying custody after the family court invalidated the juvenile court’s custody order.
The court of appeals disagreed with the mother’s arguments and affirmed the lower court’s ruling. First, in August 2011, the family court did order that the mother’s in-person visitation remain supervised. Second, even though the court invalidated the juvenile court’s order and judgment, that did not translate into a substantial change of circumstances on which to base a modification of custody. Here, the court reviewed the evidence and the options before it and made the determination for refusing to modify the custody and visitation order.
While the decision is unpublished and may not be cited to or relied on by parties, its underlying reasoning may serve to inform later cases in this jurisdiction. This case clearly illustrates the complicated nature of child custody disputes arising from a contentious divorce.
Roy M. Doppelt is a seasoned divorce attorney who has more than 20 years of experience assisting clients throughout the State of California with all of their family law needs. Doppelt And Forney, APLC serves clients in San Diego, Encinitas, Scripps Ranch, Linda Vista, and throughout Southern California. To schedule a free confidential consultation, call Doppelt And Forney, APLC toll-free at (800) ROY IS IT (769-4748) or contact us through the law firm’s website.
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