One of the most important aspects of successful parenting after a separation or divorce is ensuring that the children have quality and uninterrupted time with both parents. Quality time encompasses the development of a meaningful time share that is honored by both parents. Unfortunately, there are times a parent fails to understand their role as ambassador for their children: a parent may behave in inappropriate and harmful ways by frustrating the parenting time with the other parent and say and do things that negatively influence the child and damage the relationship between the child and the other parent.
The family law courts have zero tolerance for this kind of bad behavior. Over the last few decades, the courts have addressed parental alienation and time share frustration in a number of ways. Since the court recognizes the extreme importance that the child maintain a good and nurturing relationship with both parents, the court will issue orders to preserve that relationship.
Co-parenting counseling, counseling with the child and parent and other therapeutic interventions may be the best course to correct the situation. The family law judge has the power to issue these and other tailor made orders for the protection of the child and the preservation of child's relationship to the parents.
If the offending parent persists in this emotionally damaging conduct, More extreme measures can be implemented by the court which can include restricting the offending parent's time with the child and restraining orders on the parent's conduct.
In re Marriage of Hartmann (6/23/10) 2 Civ B215917, Div 6 (Gilbert) 2010 WL 2510383 is a recent published California family law opinion of how the court interprets inappropriate conduct and how to address the behavior in this case with restraining orders.
In this case the father asked the court to issue an order restraining mom from, among other things, “ ‘interfering with [father's] custodial time.’” In support of his request, father claimed that mom told the children “every detail of the trial,” after which the children told him that they believed that “he won because he lied on the stand,” that he sought joint custody so that he’d pay lower child support, and that he and mom could ignore the family law custody and school placement orders.
At hearing on these issues, both parents presented evidence. When the hearing ended,the trial court concluded that mom alienated the children from father by word, deed, and demeanor. Accordingly, the judge granted father's request for a restraining order. At a later hearing father filed a contempt, asserting that mom persisted in interfering with his custody time. Father claims that mom refused to tell him where one of his children was, and mom continued to talk to the children about attending boarding school when the court issued an earlier order allowing them to attend public school.
Mom moved to vacate father's restraining order, claiming that the order not to "interfere" with father's time was vague and ambiguous.The court denied her motion and again ordered mom restrained from interfering with father's custody time. Mom appealed and the appellate court held that the term “interfere” is not ambiguous and that the restraining order did not violate mom's right of free speech because other California family law cases establish that the family law court has the authority to restrict a parent's speech in order to protect children.
If a parent is denying visitation, saying harmful things to the children and /or in other ways frustrating the parent child relationship, the family law judge has the power to take action. Knowing what to say as well as when and how to present your custody issues to the court will control the outcome of the court's orders. For these reasons, it is critical that you have a skilled family law attorney on your side assisting you on bringing your case before the court.
Monday, June 28, 2010
Tuesday, May 18, 2010
California Child Custody: The Basics
California Child Custody Laws
Arlene D. Kock, Esq.
Who Gets Child Custody in California?
Like most states, the standard for child custody determinations in California is found in the Family Law Code and is designed to establish the overall best interest of the child with an emphasis on assuring the “health, safety, and welfare” of the child and “frequent and continuing contact” with both parents absent child abuse, domestic violence, or where the contact would not be in the best interest of the child as provided in the California Family Code section 3011 (See California Family Code Section 3011, 3020, 3040, 3080. Further, according to California family code section 3040, child custody should be granted in an order of preference and according to the best interest of the child.
DOMESTIC VIOLENCE AND CUSTODY
If the child has been exposed directly or indirectly to domestic violence, then the court must design a custody plan to allow safe contact with the abusive parent. In some instances based upon the kind of abuse, the court will prohibit contact between the child and the abusive parent.
Many reasons may exist to place the child in a new custody environment or maintain the child’s current custody plan. The courts and judges are trying to steer away from the language used in the past designating one parent as a visiting parent and the other parent as the custodial parent. The way the judges and specialists in the field currently model custody definitions is to refer to both parents as having “parenting time”. This approach assists the parents in understanding that it isn't the quantity of time that is most important for the child’s well being but the quality of the time.
WHO CAN ASK FOR CUSTODY OF A CHILD
A common challenge for the court is to decide who will get custody of the child. Child custody may be petitioned by not only biological parents but by grandparents, stepparents, or any person who believes they can provide suitable care and guidance to the child.
According to California family code section 3040 child custody should be granted in an order of preference and according to the best interest of the child.
The court looks first to grant custody to both parents jointly or to either parent before looking to grant custody to other persons. California however does not currently establish a preference or a presumption for or against joint custody arrangements. Instead, if the parents are unable to come to an agreement on child custody and visitation it allows the California family court or California judge to make the parenting arrangement decision on a case-by-case basis according to what it believes reflects the overall best interest of the child and the specific circumstances affecting that child’s family system.
If neither parent is granted custody, then the court may look towards the person’s home in which the child has been living and the stability of that environment and then to any person deemed by the court to be able to provide appropriate care for the child. In short, the court will typically look to grant child custody first to the parents according the best interest of the child and if they are deemed unfit the court will then look to grant child custody to other persons according to the best interest of the child.
WHICH PARENT WILL INSURE THE CHILD HAS VISITATION
California Family Code Section 3040 states: (a) Custody should be granted in the following order of preference according to the best interest of the child as provided in Sections 3011 and 3020: (1) To both parents jointly pursuant to Chapter 4 (commencing with Section 3080) or to either parent. In making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent, consistent with Section 3011 and 3020, and shall not prefer a parent as custodian because of that parent's sex. The court, in its discretion, may require the parents to submit to the court a plan for the implementation of the custody order. (2) If to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment. (3) To any other person or persons deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child. (b) This section establishes neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child.
As noted in the statute quoted above, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent.
If the judge finds that the parent with the current greater time share is sabotaging the parenting relationship of the other parent, the court may make an order to change custody to the other non-offending parent if the judge determines that this parent would be more responsible in insuring that the child has regular custodial visits.
Determining the best custodial placement of your children can be a life changing event for the children and the parents. To insure you and your children's legal rights, its always best to hire an attorney with extensive experience in this field of law.
Arlene D. Kock, Esq.
Who Gets Child Custody in California?
Like most states, the standard for child custody determinations in California is found in the Family Law Code and is designed to establish the overall best interest of the child with an emphasis on assuring the “health, safety, and welfare” of the child and “frequent and continuing contact” with both parents absent child abuse, domestic violence, or where the contact would not be in the best interest of the child as provided in the California Family Code section 3011 (See California Family Code Section 3011, 3020, 3040, 3080. Further, according to California family code section 3040, child custody should be granted in an order of preference and according to the best interest of the child.
DOMESTIC VIOLENCE AND CUSTODY
If the child has been exposed directly or indirectly to domestic violence, then the court must design a custody plan to allow safe contact with the abusive parent. In some instances based upon the kind of abuse, the court will prohibit contact between the child and the abusive parent.
Many reasons may exist to place the child in a new custody environment or maintain the child’s current custody plan. The courts and judges are trying to steer away from the language used in the past designating one parent as a visiting parent and the other parent as the custodial parent. The way the judges and specialists in the field currently model custody definitions is to refer to both parents as having “parenting time”. This approach assists the parents in understanding that it isn't the quantity of time that is most important for the child’s well being but the quality of the time.
WHO CAN ASK FOR CUSTODY OF A CHILD
A common challenge for the court is to decide who will get custody of the child. Child custody may be petitioned by not only biological parents but by grandparents, stepparents, or any person who believes they can provide suitable care and guidance to the child.
According to California family code section 3040 child custody should be granted in an order of preference and according to the best interest of the child.
The court looks first to grant custody to both parents jointly or to either parent before looking to grant custody to other persons. California however does not currently establish a preference or a presumption for or against joint custody arrangements. Instead, if the parents are unable to come to an agreement on child custody and visitation it allows the California family court or California judge to make the parenting arrangement decision on a case-by-case basis according to what it believes reflects the overall best interest of the child and the specific circumstances affecting that child’s family system.
If neither parent is granted custody, then the court may look towards the person’s home in which the child has been living and the stability of that environment and then to any person deemed by the court to be able to provide appropriate care for the child. In short, the court will typically look to grant child custody first to the parents according the best interest of the child and if they are deemed unfit the court will then look to grant child custody to other persons according to the best interest of the child.
WHICH PARENT WILL INSURE THE CHILD HAS VISITATION
California Family Code Section 3040 states: (a) Custody should be granted in the following order of preference according to the best interest of the child as provided in Sections 3011 and 3020: (1) To both parents jointly pursuant to Chapter 4 (commencing with Section 3080) or to either parent. In making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent, consistent with Section 3011 and 3020, and shall not prefer a parent as custodian because of that parent's sex. The court, in its discretion, may require the parents to submit to the court a plan for the implementation of the custody order. (2) If to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment. (3) To any other person or persons deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child. (b) This section establishes neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child.
As noted in the statute quoted above, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent.
If the judge finds that the parent with the current greater time share is sabotaging the parenting relationship of the other parent, the court may make an order to change custody to the other non-offending parent if the judge determines that this parent would be more responsible in insuring that the child has regular custodial visits.
Determining the best custodial placement of your children can be a life changing event for the children and the parents. To insure you and your children's legal rights, its always best to hire an attorney with extensive experience in this field of law.
Monday, May 3, 2010
DIVIDING DEBT: Be Sure Cover Everything in Your Judgment
When a spouse finally nears the end of the divorce process, one can typically sense completion, relief and fatigue. The last of the formal paperwork is being put together by the attorneys and everyone is postured to get the last documents filed with the court and on with their lives. However, this phase of a case can be the most critical of all: the proper completion of the judgment paperwork by the inclusion of all the assets and debts affecting the marriage.
If you overlook something in the agreement or not have the settlement language drafted in a way to thoroughly protect your legal rights, problems and resulting legal battles may lay ahead.
Lets look at a recent case entitled CMRE FINANCIAL SERVICES v Parton (4/29/10) 4 Civ DO55266: Wife was sued by a collection company for the post separation debts that husband incurred. The medical bills were listed in wife's petition for divorce and at the time of judgment, the court did not assign wife this debt.
CMRE sued both husband and wife for the debt claiming that the debt was the joint responsibility of the parties claiming that wife was still liable for the debt under Family Code 914 which holds a spouse can be held liable for the other spouses debts if they are deemed necessaries of life. Wife countered with Family Code 916(a)(2) which protects the spouse from the other persons debt if it is not assigned to the spouse in the divorce judgment.
The California Appellate court reversed the lower court decision that went against wife holding that Family Code 4302 (spouse is not liable for post-separation debt incurred for the other spouse's necessities of life unless the parties have so stipulated) and Family Code 916(a)(2) protect the wife from the debt collector's pursuit of the debt.
Better planning and draftsmanship of the judgment might have made a difference here. Adding specific language in the judgment to cement the debt as solely belonging to husband and by referencing the Family Code sections most relevant to this 3rd party debt collection problem might have made the creditor CMRE think twice about suing the wife.
If you overlook something in the agreement or not have the settlement language drafted in a way to thoroughly protect your legal rights, problems and resulting legal battles may lay ahead.
Lets look at a recent case entitled CMRE FINANCIAL SERVICES v Parton (4/29/10) 4 Civ DO55266: Wife was sued by a collection company for the post separation debts that husband incurred. The medical bills were listed in wife's petition for divorce and at the time of judgment, the court did not assign wife this debt.
CMRE sued both husband and wife for the debt claiming that the debt was the joint responsibility of the parties claiming that wife was still liable for the debt under Family Code 914 which holds a spouse can be held liable for the other spouses debts if they are deemed necessaries of life. Wife countered with Family Code 916(a)(2) which protects the spouse from the other persons debt if it is not assigned to the spouse in the divorce judgment.
The California Appellate court reversed the lower court decision that went against wife holding that Family Code 4302 (spouse is not liable for post-separation debt incurred for the other spouse's necessities of life unless the parties have so stipulated) and Family Code 916(a)(2) protect the wife from the debt collector's pursuit of the debt.
Better planning and draftsmanship of the judgment might have made a difference here. Adding specific language in the judgment to cement the debt as solely belonging to husband and by referencing the Family Code sections most relevant to this 3rd party debt collection problem might have made the creditor CMRE think twice about suing the wife.
Thursday, April 1, 2010
Emotional Problems Affecting Child Custody: Addictions
Parenting children in any given situation can be a difficult assignment. When the parents are faced with divorce, the parental responsibilities can take on a new and complicated dimension. If one adds to the experience of divorce a parent suffering from some form of addictive behavior, the parent-child relationship for that afflicted parent may require close supervision and limitations.
Child custody cases in California always focuses on what is in the best interest of the child(ren). For this reason, during the courts involvement in a child custody and visitation case,the family law judge is in a role of a de facto guardian of the child's best interest.
If a parent has emotional problems or addictions that can negatively impact the child and the parents relationship, the court will take steps to ensure that the child will be properly protected when the child has contact with the problem parent.
There are various addictions that can impact the safety and well being of a child. I am including some common examples to illustrate this problem and the means by which the court might deal with the problem.
GAMBLING: Typically viewed by the courts as a financial problem one can encounter in a divorce, this addiction can negatively impact a parenting relationship. If the parent with this illness allows gambling to be a primary recreational focus, children can be exposed to adult activities during their visitation time.
For example, taking the kids to the horse races for a Sunday outing could fall into the category of inappropriate parenting choices. Other examples of being driven by a gambling addiction would be spending long hours on gambling Internet sites and devoting minimal time to the child during scheduled visitation periods.
In cases like the ones described above, the judge might schedule a tightly structured visitation plan with an order prohibiting gambling while the child is in that parent's custodial care. The court may also order professional help such as counseling for the parent as a condition for continued visitation.
SEXUAL ADDICTION: This addiction has recently received a lot of press in high profile celebrity cases. The typical method of how this addiction may impact parenting rests with the likelihood that the child may be exposed to inappropriate adult behavior or pornographic materials.
A parent leading a promiscuous lifestyle such as having multiple sex partners, swing dating,and /or sex parties runs the risk of having very limited visitation with their child if that parent's behavior and lifestyle could expose the child to the parents sexual partners.
A family law judge may severely curtail a child's contact if a parent engages in viewing pornography and adult Internet sites. The concern here rests with the chance the child could be exposed to this conduct and pornographic material.
ALCOHOL and DRUG ADDICTION: These addictions can be the most difficult to manage in a child custody case. Parents with long standing substance abuse problems can be dangerous and unreliable parents. Even if the parent truly loves and wants to spend time with their child, the timeshare may be severely limited if the parent does not maintain sobriety. The family law judge will order counseling and proper rehab for the parent and expect full compliance with the courts orders if the parent expects to have a parenting relationship with their child.
Drug testing and reporting can be ordered by the court to ensure the addicted parent is clean and sober.Sadly, some custody cases end with the sober parent having sole legal and physical custody and the addicted parent having little or no time with the child if the addicted parent fails to maintain sobriety.
To get the best custody and visitation outcome, its always important to have a qualified attorney experienced in the field of family law assist you in bringing these parenting issues before the court.
Child custody cases in California always focuses on what is in the best interest of the child(ren). For this reason, during the courts involvement in a child custody and visitation case,the family law judge is in a role of a de facto guardian of the child's best interest.
If a parent has emotional problems or addictions that can negatively impact the child and the parents relationship, the court will take steps to ensure that the child will be properly protected when the child has contact with the problem parent.
There are various addictions that can impact the safety and well being of a child. I am including some common examples to illustrate this problem and the means by which the court might deal with the problem.
GAMBLING: Typically viewed by the courts as a financial problem one can encounter in a divorce, this addiction can negatively impact a parenting relationship. If the parent with this illness allows gambling to be a primary recreational focus, children can be exposed to adult activities during their visitation time.
For example, taking the kids to the horse races for a Sunday outing could fall into the category of inappropriate parenting choices. Other examples of being driven by a gambling addiction would be spending long hours on gambling Internet sites and devoting minimal time to the child during scheduled visitation periods.
In cases like the ones described above, the judge might schedule a tightly structured visitation plan with an order prohibiting gambling while the child is in that parent's custodial care. The court may also order professional help such as counseling for the parent as a condition for continued visitation.
SEXUAL ADDICTION: This addiction has recently received a lot of press in high profile celebrity cases. The typical method of how this addiction may impact parenting rests with the likelihood that the child may be exposed to inappropriate adult behavior or pornographic materials.
A parent leading a promiscuous lifestyle such as having multiple sex partners, swing dating,and /or sex parties runs the risk of having very limited visitation with their child if that parent's behavior and lifestyle could expose the child to the parents sexual partners.
A family law judge may severely curtail a child's contact if a parent engages in viewing pornography and adult Internet sites. The concern here rests with the chance the child could be exposed to this conduct and pornographic material.
ALCOHOL and DRUG ADDICTION: These addictions can be the most difficult to manage in a child custody case. Parents with long standing substance abuse problems can be dangerous and unreliable parents. Even if the parent truly loves and wants to spend time with their child, the timeshare may be severely limited if the parent does not maintain sobriety. The family law judge will order counseling and proper rehab for the parent and expect full compliance with the courts orders if the parent expects to have a parenting relationship with their child.
Drug testing and reporting can be ordered by the court to ensure the addicted parent is clean and sober.Sadly, some custody cases end with the sober parent having sole legal and physical custody and the addicted parent having little or no time with the child if the addicted parent fails to maintain sobriety.
To get the best custody and visitation outcome, its always important to have a qualified attorney experienced in the field of family law assist you in bringing these parenting issues before the court.
Thursday, March 4, 2010
Emotional Problems and Child Custody: Hoarding
Any custody and visitation plan designed either by the parents or the court must always take into consideration the best interests of the children. One of the most complex areas of family law involves developing the best parenting plan where one of the parents suffers emotional or psychiatric problems.
If a parent with an emotional illness is receiving proper care and is stabilized, then custody and timeshare development goes smoothly. If the afflicted parent is not receiving care for their illness ,has gone off their medications or is not cooperating in their treatment, these events may lead to problems and safety concerns affecting the children.
Wikipedia defines Compulsive hoarding (or pathological hoarding or disposophobia or the Messie mindset) as a mental disorder marked by an obsessive need to acquire (and failure to use or discard) a significant amount of possessions, even if the items are worthless, hazardous, or unsanitary. Compulsive hoarding causes significant clutter and impairment to basic living activities, including mobility, cooking, cleaning, showering, and sleeping. A person who engages in compulsive hoarding is commonly said to be a "pack rat", in reference to that animal's apparent fondness for material objects.
Hoarding directly affects the health and safety of children visiting or residing in the residence. Dealing with this disorder may be complicated by the healthy parent not wanting to create turmoil intervening particularly if the child or children are protective of the afflicted parent. An example might be where a child living with the hoarder takes on the role of parent for the hoarder and the younger children. Any effort by the noncustodial parent to remedy the health hazards in the house or remove the children from the home might be met with resistance not only by the hoarder but the children.
In these situations, it may be best for the police and child protective services (CPS) to assess the situation and to intervene for the children's welfare. If the authorities feel its justified to remove the children from the home, the non-custodial parent can work with the agency in charge to take temporary possession of the children. If the children are given emergency placement with the the non-custodial parent, then it is wise for that parent to seek emergency protective orders in the family law courts as well as acquire physical custody of the children. The judge will have the power to issue orders to remedy the problem in the hoarder's home.
After you get into the family law courts, the judge can structure whatever orders are necessary to provide for the safety and well being of the child(ren). The court will normally require review dates to see if the hoarder is receiving the psychological care they need and that proper steps are taken to make the home clean and safe for everyone.
If the hoarder refuses treatment or is unwilling to rid the house of the dangerous accumulation of debris, the custody plan may radically change where the parent with the hoarding problem may only have limited and supervised visitation with the children at a location other than the home.
Hoarding is a very complex expression of mental illness. The parent suffering this disorder may need prolonged mental health treatment and supervision to insure that the house, now cleaned, does not return to its earlier condition.
Knowing you and your children's legal rights are critical to the proper determination of how best to deal with the development of a custody and visitation plan suited for the protection of the children. For these reasons, consulting with and retaining an attorney with extensive experience in family law will greatly assist you getting help from the courts and in the management of this complex custody problem.
If a parent with an emotional illness is receiving proper care and is stabilized, then custody and timeshare development goes smoothly. If the afflicted parent is not receiving care for their illness ,has gone off their medications or is not cooperating in their treatment, these events may lead to problems and safety concerns affecting the children.
Wikipedia defines Compulsive hoarding (or pathological hoarding or disposophobia or the Messie mindset) as a mental disorder marked by an obsessive need to acquire (and failure to use or discard) a significant amount of possessions, even if the items are worthless, hazardous, or unsanitary. Compulsive hoarding causes significant clutter and impairment to basic living activities, including mobility, cooking, cleaning, showering, and sleeping. A person who engages in compulsive hoarding is commonly said to be a "pack rat", in reference to that animal's apparent fondness for material objects.
Hoarding directly affects the health and safety of children visiting or residing in the residence. Dealing with this disorder may be complicated by the healthy parent not wanting to create turmoil intervening particularly if the child or children are protective of the afflicted parent. An example might be where a child living with the hoarder takes on the role of parent for the hoarder and the younger children. Any effort by the noncustodial parent to remedy the health hazards in the house or remove the children from the home might be met with resistance not only by the hoarder but the children.
In these situations, it may be best for the police and child protective services (CPS) to assess the situation and to intervene for the children's welfare. If the authorities feel its justified to remove the children from the home, the non-custodial parent can work with the agency in charge to take temporary possession of the children. If the children are given emergency placement with the the non-custodial parent, then it is wise for that parent to seek emergency protective orders in the family law courts as well as acquire physical custody of the children. The judge will have the power to issue orders to remedy the problem in the hoarder's home.
After you get into the family law courts, the judge can structure whatever orders are necessary to provide for the safety and well being of the child(ren). The court will normally require review dates to see if the hoarder is receiving the psychological care they need and that proper steps are taken to make the home clean and safe for everyone.
If the hoarder refuses treatment or is unwilling to rid the house of the dangerous accumulation of debris, the custody plan may radically change where the parent with the hoarding problem may only have limited and supervised visitation with the children at a location other than the home.
Hoarding is a very complex expression of mental illness. The parent suffering this disorder may need prolonged mental health treatment and supervision to insure that the house, now cleaned, does not return to its earlier condition.
Knowing you and your children's legal rights are critical to the proper determination of how best to deal with the development of a custody and visitation plan suited for the protection of the children. For these reasons, consulting with and retaining an attorney with extensive experience in family law will greatly assist you getting help from the courts and in the management of this complex custody problem.
Wednesday, March 3, 2010
Opinion: How to Teach Kids Money Matters - AOL News
Husbands and wives are not only ones in a family system that may have conflict over money and finances. Frequently, the marital conflict has to do with how money is being spent on or by the family children. I found a great AOL news article addressing the need to teach your children at an early age proper respect for and management of money.
Here is the relevant article:
http://www.aolnews.com/opinion/article/opinion-how-to-teach-kids-money-matters/19374986?sms_ss=blogger">Opinion: How to Teach Kids Money Matters - AOL News
Here is the relevant article:
http://www.aolnews.com/opinion/article/opinion-how-to-teach-kids-money-matters/19374986?sms_ss=blogger">Opinion: How to Teach Kids Money Matters - AOL News
Friday, February 5, 2010
PHYSICAL CUSTODY: Use it or Lose it!
Real time physical custody is an important determiner on where the child should live if a parent asking the court to allow them keep custody of the child elects to move.
The key case controlling move away cases In re Marriage of Burgess (1996) 13 Cal.4th 25 held in its decision that the trial court must have a review of the custody arrangement to ascertain the best interest of the child(ern) if a joint custodial parent objects to the move away of the child to another geographical area.
Keep in mind that having the "joint physical custody" language in a court order by itself does not control whether or not the court will review the child's residential change from the backdrop of what is in the child's best interest. There must be in fact a joint custody arrangement.
In a recent unpublished case, the California Appellate Court held that where a mother had a stipulated order awarding joint legal custody and had the child primarily with her until her relocation to another state, she was not entitled to take the child with her. In this particular case, mother moved to Hawaii leaving the minor child with her 24 year old son in CA. In 2008, father filed a motion for custody of the child and mother responded that she moved to Hawaii expecting the child to relocate with her.
The trial court determined that by leaving the child with her adult son, mother abandoned her role of primary caregiver. In this case,the child had been mostly in mothers care before her departure without the child for Hawaii.
Mother unsuccessfully tried to argue that since the child had primarily lived with her since 2003, father should not be entitled to a hearing on the child's best interests and that because she primarily had the child up to her departure to Hawaii, the court had to allow the child to go with her. Mother pointed to dad's stipulation that, in fact ,the child had been primarily living with mother since 2003 to support this position!
The appellate court supported the trial courts change of custody to the father because mom gave up her position as being the primary caretaker of the child by leaving the child with her adult son.
By having the child stay with her adult son, mom could no longer claim she was the primary custodial parent and that dad was not entitled to a hearing on the child's change of custody to his care.
What all of this really means is that each formal or informal change in a parenting relationship will trigger different legal outcomes if the parents dispute the custodial placement of a child. If you are contemplating a move or even a significant change in what you believe is visitation time, it is always best to consult with an attorney experienced in this complicated area of family law to better understand you and your child's legal rights.
The key case controlling move away cases In re Marriage of Burgess (1996) 13 Cal.4th 25 held in its decision that the trial court must have a review of the custody arrangement to ascertain the best interest of the child(ern) if a joint custodial parent objects to the move away of the child to another geographical area.
Keep in mind that having the "joint physical custody" language in a court order by itself does not control whether or not the court will review the child's residential change from the backdrop of what is in the child's best interest. There must be in fact a joint custody arrangement.
In a recent unpublished case, the California Appellate Court held that where a mother had a stipulated order awarding joint legal custody and had the child primarily with her until her relocation to another state, she was not entitled to take the child with her. In this particular case, mother moved to Hawaii leaving the minor child with her 24 year old son in CA. In 2008, father filed a motion for custody of the child and mother responded that she moved to Hawaii expecting the child to relocate with her.
The trial court determined that by leaving the child with her adult son, mother abandoned her role of primary caregiver. In this case,the child had been mostly in mothers care before her departure without the child for Hawaii.
Mother unsuccessfully tried to argue that since the child had primarily lived with her since 2003, father should not be entitled to a hearing on the child's best interests and that because she primarily had the child up to her departure to Hawaii, the court had to allow the child to go with her. Mother pointed to dad's stipulation that, in fact ,the child had been primarily living with mother since 2003 to support this position!
The appellate court supported the trial courts change of custody to the father because mom gave up her position as being the primary caretaker of the child by leaving the child with her adult son.
By having the child stay with her adult son, mom could no longer claim she was the primary custodial parent and that dad was not entitled to a hearing on the child's change of custody to his care.
What all of this really means is that each formal or informal change in a parenting relationship will trigger different legal outcomes if the parents dispute the custodial placement of a child. If you are contemplating a move or even a significant change in what you believe is visitation time, it is always best to consult with an attorney experienced in this complicated area of family law to better understand you and your child's legal rights.
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