The following process is used by the Family Law Courts to determine custody and visitation. This is an overview and not always followed by every Family Law Court.
1. If the parties agree on custody and visitation, the parties will sign a Stipulation (an agreement) agreeing to the custody and visitation agreement.
2. IF NOT, THEN: An Order To Show Cause Re: Child Custody and Visitation is filed with the court. However, before the court hears the matter, the following occurs:
3. CUSTODY MEDIATION SERVICES FROM THE CONCILIATION COURT: The parties are ordered to attend Conciliation Court where a the parties meet with a highly trained child social worker, Ph.D., etc., and with the assistance of this person try to work out a custody and visitation schedule. The parties are not required to reach an agreement. If an agreement is reached, then a stipulation is prepared, signed by the parties, reviewed by the attorneys and submitted to the court for approval. IF AN AGREEMENT IS NOT REACHED, THEN:
4. The parties proceed to the Order To Show Cause. ( An Order To Show Cause is a special hearing in the family law courts where the Judge decides certain limited issues pertaining to issues of the divorce) But, before the court makes final orders regarding custody and Visitation, (temporary orders usually are made) , the Court will usually order a CHILD EVALUATION STUDY. A Child Evaluation Study is when the Court appoints a private social worker, master of Social Work, psychologist, or psychiatrist, to perform an in-depth study to determine the proper custody and vitiation. This can take up to 4 months and cost a minimum of $5,000 to $15,000 and up depending on the evaluator. The report is given to the attorneys and there is a court hearing regarding the findings and recommendations.
If one side wishes to contest the findings, a trial can be scheduled by the court. Otherwise, the court usually adopts the findings as its court order for custody and visitation. This remains the custody and visitation order until it is changed by agreement of the parties or order of court.
5. BE ADVISED: Any time there is a "change of circumstance" a party may ask to modify the custody and visitation schedule. If so, the entire above process discussed above, begins again.
On February 23, 2004 a new law took effect which provides alcohol and drug testing in certain custody or visitation proceedings. The purpose of this law is to protect the children of a marriage and to assist in determining the best interests of the child. . However, as the rights of the parents must be protected, the law has certain safeguards. A general discussion of this law follows.
The court may order alcohol or drug testing if there is a judicial determination based upon a preponderance of evidence that there is the habitual, frequent, or continual abuse of alcohol or illegal use of controlled substances by the parent or legal guardian. The evidence may include convictions with the last five years.
The parent who has undergone drug testing shall have the right to a hearing, if requested, to challenge a positive test results. A positive test result, even if challenged and upheld, shall not, by itself, constitute grounds for an adverse custody decision. The results of the testing shall be confidential and shall be maintained as a sealed record in the court file. Further, any person who has access to the test results may not disseminate copies or disclose information about the test results to any person other than a person who is authorized to receive the test results. Any breach of this confidentiality can be sanctioned up to $2,500.
The Court has the authority to order either or both parents to pay the costs of the drug or alcohol testing.
The California Family Law Courts offer a free information sheet on changing a child support order. Following is a summary of these hints.
A child support order will remain the same unless a party to the action requests that the support be changed (modified). A child support order can only be modified by the filing of a motion to change child support. Each party involved in your case must then be served with the motion.
When a Child Support Order May Be Modified
The Court takes several things into account when ordering the payment of child support. They include but are not limited to the following:
1. Number of Children;
2. The net income of each parent;
3. The percentage of time each parent has physical custody of the child/children;
4. The tax filing status of each party; and
An existing order for child support may be modified when there has been a significant change in one pf the parent's net income or a significant change in the parenting schedule .
How to Modify an Existing Child Support Order
1. Certain judicial forms must be completed by the party seeking to change the support order. These forms include: * Order To Show Cause or Notice of Motion * Application for Order and Supporting Declaration or Notice of Motion for Simplified Modification of Order for Child, Spousal or Family Support * Income and Expense Declaration or Financial Statement (Simplified).
2. These forms must by filed with the court clerk who will provide you with a
hearing date. There is a filing fee for this motion but an application can be made to the court for waiver of the court fees.
3. This motion must then be served on the other parent and a proof of service filed with the court clerk. The parties must then attend the hearing.
In every divorce where there is an issue of child custody and visitation and the parents cannot agree on a custody or visitation schedule, the family law court is required by California Law to have the parties attend a mediation session prior to having their case heard by the judge.
The mediation is conducted by a trained professional who specialize in custody and visitation matters. Financial matters are not discussed during mediation. Generally only the parties are allowed to participate and attorneys are not allowed to be part of the process.
The purpose of the mediation is to give each parent a chance to discuss their differences about custody and visitation and to try to resolve them. The session can last up to two hours. The goal is to have the parties develop their own plan about their children. The parents make the decisions and the mediator is there to assist the parties with their decision making process. The mediator can provide ideas and information about the social, emotional, and psychological needs of the children. It is the goal to make decisions that are in the best interest of the children. It is usually better for the parties to reach an agreement where they know all of the terms of their agreement as compared to letting a judge make a decision, which may not please either parent.
All meetings with the mediator are confidential. Anything said to the mediator cannot be repeated in court. The mediator cannot take sides and will not testify in court about the mediation session. The mediator may meet with both parents together or may meet with one separately. Sometimes during the sessions, the mediator meets both jointly and separately with the parents.
Finally, during these meetings as emotions can be high, the parties must be respectful to each other and communicate in a proper manner.
The parents have responsibilities during this mediation session. The first and most important responsibility is to do what is best for the children. Treating each other with respect at the mediation and all times is a major step in doing what is right. Additionally, at mediation, the parents should be prepared to offer solutions or suggestions as to how a parenting plan or visitation schedule can be developed for the parties. Each family is unique and the parenting plan created for one family may not be the best plan for another family. The mediator will be able to assist the parties in developing a plan that is right for that family.
It is important to know that all decisions that are made in mediation are voluntary. If an agreement is reached, the mediator will record the terms of the agreement and ask the parties to sign it. The parties then have ten days to think about the agreement (and discuss it with their attorney) before it becomes official. This agreement is for the current status of the parties and can be modified as the children get older and situations change. Also the agreement can be made on certain parenting issues and other parenting issues on which an agreement cannot be reached can be referred to the court for its decision.
The agreement, or parenting plan can be as simple or detailed as the parties want. The Plan can discuss how decisions about the children will be made and when each party will be responsible for the children. It should be based upon the needs of each child, the child's age, and the needs of the parents. The Plan can include daily, weekly or monthly schedules as well as vacation and holiday schedules.
Experience has shown that it is usually better to reach an agreement where both parties have participated in developing a parenting plan and know its terms as opposed to letting the court dictate a plan where neither parent knows what the court will rule.
When you think of child custody orders one immediately thinks about who has physical custody and what is the parenting plan or visitation schedule. Besides these main items, the Court will consider numerous other custody orders. Following is a discussion of many additional provisions a person can add to a general physical custody order.
* Notification of parent's current address: Each party must notify the other of any change of current address of residence or work. Neither parent can use this information for purposes of harassment or invading the privacy of the other.
* Notification of proposed move of child: Each parent must notify he other of any planned change of residence of the child. The notice must state the planned address including the county and state of the new residence. The notice must be sent by certified mail, return receipt requested.
* Child Care: The parents must let the other know of the name, address, and telephone number of the child's regular child-care provider.
* Right of First Option of Child Care: If a child requires child care while the child is in the custody of one of the parents, the other parent must be given the first opportunity with as much prior notice as possible to care for the child before other arrangements are made. Usually this type of order does not include regular child care needed when a parent is working.
* Canceled Parenting Time: If the noncustodial parent fails to arrive at the appointed time and fails to notify the custodial parent that he or she will be late, the visitation can be considered canceled after some specified time wait. Further, the custodial parent must give the noncustodial parent as much notice as possible if the child is ill and unable to participate in scheduled time with the other parent. A doctor's excuse can be required.
* Phone Contact Between Parents and Children: The children can have telephone access to the parents and the parents can have telephone contact with the children, all at reasonable times and reasonable durations. The schedule phone contact can be scheduled and the parents and third parties can be ordered not to listen to or monitor the calls.
These are some of the additional orders a person can request when discussing physical custody of the children. There are several other additional provisions that can included in a physical child custody order.
Domestic violence can have a substantial and material effect upon the determination of child custody in a child custody hearing.
When a party is found to have committed an act of domestic violence against the other party seeking child custody or against the child or siblings, a legal presumption is raised that it would be detrimental to the best interests of the child that the person who "perpetrated domestic violence" be awarded sole or joint physical or legal custody. A criminal conviction is not necessary to raise the presumption, only proof of an act of domestic violence occurred
A person has "perpetrated domestic violence" when a court find that the person has "intentionally or recklessly caused or attempted to cause bodily injury,, or sexual assault, or to have placed a person in reasonable apprehension of imminent serious bodily injury to that person or to another, or to have engaged in any behavior involving, but not limited to, threatening, striking, harassing, destroying personal property or disturbing the peace of another, for which the court may issue an exparte order to protect the other party seeking custody of the child or to protect the child and the child's siblings". (See Family Code Section 3044)
The presumption may be rebutted by a preponderance of the evidence. Factors that may assist the "perpetrator" in rebutting the presumption, if applicable, include: completion of a batter's treatment program or anger management program, completion of an alcohol or drug abuse program, completion of a parenting class, compliance with terms and conditions of probation, and whether or not any further acts of domestic violence has been committed.
As the domestic violence matters are assigned to criminal court and the child custody matter are assigned to family court, it is important that the criminal attorney and family attorney work together to achieve the best results in each of the proceedings.
Now is the time to think about and plan for holiday schedules involving children with divorced or divorcing parents. If a parent thinks that there will be some conflict about where the children will spend the holiday, the parent should address this issue now and not wait till later.
Many questions arise during the holiday season as to the rights of the custodial parent and the non-custodial parent as they pertain to visitation with the minor children. It is a time of additional stress for the parents and the children, as the non-custodial parent wants more time with the children and the custodial parent thinks that the children are spending too much time with the non-custodial parent.
To avoid this situation, first consult and review the Divorce Judgment. The Divorce Judgment should explain the rights of the parties during the holiday season. The judgment can be a simple as "reasonable visitation by agreement of the parties" or as specific as defining each holiday visitation as Thanksgiving Day from 8 A.M. to 5 P.M. in even numbered years and 5 P.M. to 10 P.M. in odd numbered years. Usually the more detailed the visitation schedule, the less opportunity there is for confusion or ambiguity among the parties.
If the Judgment is silent on visitation or is confusing or ambiguous, the parties should seek the services of the court mediator. In conciliation court the parties can meet with a trained professional who can assist the parties in developing a visitation schedule for the holiday season. Conciliation Court is very busy and it is recommended to make an appointment as soon as possible.
There are times when the parties cannot reach an agreement. Then the parties can ask a judge to make a decision. The process to obtain the Court's assistance in visitation is called An Order To Show Cause. It may take 4 -6 weeks to schedule a court hearing. Therefore, if a party believes that there may be conflict between the parties, it is better to schedule a court hearing sooner rather than later.
Finally, there are some times when at the last moment one party will not abide by the Divorce Judgment. Then the parties can seek an emergency hearing before a judge.
A man, when faced with a paternity action or Petition to Establish Parental Relationship, has two options. He can challenge his paternity of the child or he can acknowledge that he is the father. Each case needs to be evaluated on an independent basis.
This article will only focus on the waiver of rights a male gives up when he acknowledges that he is the father of the child. The Court requires that party be advised of his rights and that he waives these rights. These rights include:
1. RIGHT TO BE REPRESENTED BY A LAWYER.
2. RIGHT TO A TRIAL (A judge will determine if the party is the parent of the child.)
3. RIGHT TO CONFRONT AND CROSS EXAMINE WITNESSES
4. RIGHT TO HAVE PARENTAGE TESTS
5. OBLIGATIONS (If the party stipulates to being the parent of the child the child will be his child for all legal purposes)
6. WAIVER (The giving up of the rights stated above except for the right to have an attorney)
7. CHILD SUPPORT (If the party stipulates to being the parent of the child the duty of support will continue for the child until terminated by law.)
8. CRIMINAL NON-SUPPORT (If the party stipulates to being the parent of the child if he willfully fails to support the child, criminal proceedings may be initiated against the party)
9. UNDERSTANDING (The party understands the above Rights)
With the establishment of parentage, the parties can also have ask the court to establish a custody order, a visitation order, and a support order.
As with any family law matter, it is always suggested to speak with your attorney before taking any legal action.
It is a mandatory requirement that in a divorce action, the spouses have a fiduciary duty to disclose to one another all assets of the community. The California legislature has declared by statute that " a full and accurate disclosure of all assets and liabilities in which one or both parties have or may have an interest must be made in the early stages of a proceeding for dissolution of marriage or legal separation of the parties, regardless of the characterization as community or separate, together with a disclosure of all income and expenses of the parties." The legislature then extends this duty by stating that "Each party has a continuing duty to immediately, fully, and accurately update and augment that disclosure to the extent there has been any material changes so that at the time the parties enter into an agreement for resolution of any of these issues, ...each party will have a full and complete knowledge of the relevant underlying facts."
The purpose of these disclosure rules are three fold:
1. They help to protect assets and liabilities that exist at the date of separation so as to avoid their dissipation prior to distribution.
2. They help to ensure fair and sufficient child and spousal support awards.
3. They assist to achieve a division of assets and liabilities between the parties as required under California law.
The California legislature has reinforced the importance of these disclosure requirements that it has added law which states the confidential relationship of a husband and wife imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other.
And what happens when there is not full disclosure. The court has the power to have the judgment of dissolution set aside and to impose sanctions of the party at fault which could be as harsh as ordering forfeiture of the asset not disclosed.
For additional information please contact Rand E. Pinsky, Esq., of the Law Offices of Rand E. Pinsky at 661-295-4644.