Jurisdictional Requirements for Custody and Visitation
The Court must have subject matter jurisdiction (or authority) to make orders relating to child custody and visitation orders in a California Court. This normally means that the minor child at issue must have resided in the State of California for at least six months immediately preceding the filing of the action. The issue of subject matter jurisdiction is a very complicated issue that often requires an experienced Family Law attorney to prepare legal arguments to submit to the Court indicating why the Court either does or does not have the jurisdiction to hear the matter.
Legal and Physical Custody
The Court has the authority to make orders relating to legal and physical custody.
Legal Custody – Family Code §3003 defines legal custody as relating to the parents’ rights to make decisions and share information relating to the health, education, and welfare of the minor child/children. The parent may be granted sole legal custody or the parties may be granted joint legal custody. Most parties are awarded joint legal custody. However, one parent could be awarded sole legal custody if there are grounds for doing so, including domestic violence, substance abuse, or child abuse by the offending parent. If one parent has sole legal custody, then that parent essentially had the legal right to make unilateral decisions for the minor children without consulting the other parent.
Joint Legal Custody – Most parents in California share joint legal custody. The Courts prefer for the parents to share joint legal custody so that they will communicate directly regarding decisions that need to be made for their children. Parents are expected to communicate and share decisions on important issues such as medical, educational, major travel, extracurricular activities, and so on.
Family Court Services
Parties in San Diego County are required to attend mediation at Family Court Services before they appear in Court to request orders related to custody or visitation. This mediation appointment is extremely important because the Court will receive a formal report from the mediator containing recommendations, findings, and background information. One of the most valuable services that a family law attorney can do is to adequately prepare his/her client for mediation. There are also private mental health professionals who specialize in preparing individuals for mediation. It is unfortunate that many parties do not retain an attorney until after mediation. The parties should understand that an attorney cannot change the recommendations from the Family Court mediator once they are issued in a report. The only option that the attorney has is to go to Court and attempt to convince the Judge that the recommendations are not in the best interest of the minor children. The best strategy is to meet with your experienced family law attorney on several occasions before mediation to make sure that you have a complete understanding as to all aspects of the mediation process. You will optimize your chance for favorable recommendations if you are well prepared before you walk into Family Court Services for your mediation appointment. Do not underestimate the need to be prepared for this mediation.
Modification of Custody and Visitation Orders
A parent has the ability to seek a modification of custody or visitation orders. However, a party seeking to modify permanent custody orders must show that there has been a material change of circumstances since the prior order was issued. This means that a parent may demonstrate a new work schedule, the child at issue is significantly older, the child is of sufficient age to express a preference for living with one parent or the other, or child abuse issues exist. A change of circumstances is not necessarily required to modify visitation issues, but a parent may not repeatedly file motions to increase visitation without good reasons for doing so. The focus in all child custody and visitation issues is “the best interest of the minor child”. You are normally required to attend mediation at Family Court Services before the Court makes any new orders on custody or visitation.
Move-away cases are often the most complex type of family law case that a judicial officer will hear. Parents have frequent needs to relocate from their geographic areas such as a job change, a new marriage, military service, or even the desire to be closer to family and friends after a divorce takes place. However, the impact of a move-away is significant because it greatly impacts the relationship of the noncustodial parent with the minor children. Having the ability to spend time with your children on holidays and school breaks is not the same as seeing them each and every week on a regular and consistent basis.
If the parties share joint physical custody of their child, then the Court will normally use a “best interest” analysis in ruling upon a move-away case. If a parent has sole physical custody of a child, then the Court will take into consideration the presumptive right of the parent to relocate to a new area unless that move would be prejudicial or detrimental to the welfare of the child. A parent desiring to move is not required to show that the move is necessary. Instead, the parent only needs to show that he or she has a good-faith reason for moving. The Court is required to consider all relevant factors relating to the minor children, including:
Preferences of the minor child if he or she is of sufficient age and maturity to express a preference.
Ages of the minor children.
Relationship of the minor child with both parents.
Reason for the move.
The distance of the move.
The extent to which both parties are able to cooperate with each other regarding the minor children, and place the needs of the minor child above those of the parent.
Needs of the minor child for stability and consistency in the current custody schedule.
Needs of the minor children for maintenance of family relationships, friendships, medical/dental care, schools, and extracurricular activities.
Move-away cases require that you have an attorney with significant experience in custody and visitation issues. Your attorney must be familiar with all relevant cases and statutes relating to move-away cases. More importantly, your attorney must have the experience to be able to convince the Judge one way or another as to why the move-away issues should be resolved in your favor. If you hire an inexperienced or incompetent attorney, then you may find yourself on the losing side of the move-away issue.
Domestic violence is one of the most pervasive issues in Family Law. Domestic violence has impacts upon many areas in family law including restraining orders, custody/visitation, and even spousal support. A party has the ability to seek a restraining order against the other party if there has been abuse as defined under the Family Code. Abuse is a very broad ground for the Court issuing a restraining order and can include stalking, sending harassing emails, publishing embarrassing information about a party via social media, and making harassing phone calls to the other party. A party has the ability to seek a temporary restraining order until a hearing can be held. A parent who has been subjected to domestic violence may also obtain orders relating to custody and visitation to protect the minor children from the offending parent. If a parent fails to take steps to protect a child from domestic violence of the other parent or even from third parties, then that parent could lose custody of the child for failing to protect the child.
Family Code §3044 provides that a parent is presumed to be incapable of sharing legal or physical custody if he or she has perpetrated domestic violence in the past five years. There are significant ramifications against a parent who has perpetrated domestic violence, particularly when custody/visitation issues are involved. You do not want to have any type of restraining order issued against you if you are seeking custody and visitation rights of your child. Parents often find themselves in very difficult situations that can naturally create anger and vindictive responses. However, it is important to never place yourself in a situation where the Court will issue a restraining order against you since you may have your ability to spend time with your child greatly restricted by the Court.
It is not uncommon when one party makes knowingly false allegations of domestic violence against the party in order to gain an advantage in the family law case.
Domestic violence is an extremely serious issue. It is important that you seek help from law enforcement and mental health professionals if you are the victim of domestic violence. It is particularly important that you take all appropriate steps to protect your minor children from exposure to domestic violence. This is accomplished by removing yourself from a unhealthy or violent living arrangement, and seeking therapeutic help for both yourself and your child. Domestic violence has a long-term impact upon all family members. It is important to understand that domestic violence is a learned behavior. All parents have an obligation to protect their children from being exposed to domestic violence.