CALIFORNIA FAMILY LAW FOR PARALEGALS, 5 th Ed.

CALIFORNIA FAMILY LAW FOR PARALEGALS, 5th Ed. Chapter Three Child Custody

A. INTRODUCTION • No area of family law brings to the courtroom the tension, anxiety, hostility, volatility, and simple raw emotion as child custody litigation. • Custody litigation is the last bastion of “fault” in the California family courts. • Issues related to children require inquiry into all aspects of the litigant’s behavior, the only limitation being the requirement that the inquiry must focus upon a determination as to what is in the best interests of the children.

1. PRELIMINARY CONSIDERATIONS • Family Code section 2010 vests the superior court with subject matter jurisdiction to determine issues related to the custody of the children and make orders that are appropriate concerning the status of the marriage, the custody and support of minor children of the marriage, and children for whom support is authorized. • It should be noted that the existence of a valid marriage bears absolutely no relationship to the propriety of a determination as to custody and visitation of minor children.

1. PRELIMINARY CONSIDERATIONS • At the outset, the parties must decide whether a request for temporary custody by way of an order to show cause or an ex parte application is required. • The next phase in the custody dispute typically involves mediation, counseling, and child custody evaluation/investigation. • Mediation is done to facilitate the parties working together to bring about a mutual agreement as to custody, which will almost always be better than one imposed by the court.

1. PRELIMINARY CONSIDERATIONS • The child custody evaluator typically will interview the parents individually, together, together with their children, individually with their children, at his office, at the home, and conduct interviews with the children independent of the parents (depending, of course, on the child’s age). • Most experienced child custody evaluators will produce reports that are on the average approximately 25 to 50 pages in length. • The court then has this available as additional evidence to assist it in making the final determination as to custody and visitation.

2. JURISDICTIONAL CONSIDERATIONS • The juvenile court is a separate yet equal branch of the superior court whose functions generally take precedence over family law matters and, in the event of a conflict between the juvenile court and the family law court, will take precedence in making determinations as to custody. • These proceedings fall generally within the category of what is referred to as the dependency court.

2. JURISDICTIONAL CONSIDERATIONS • Matters involving the dependency court typically originate when the child is taken out of the home by the County Department of Public Social Services (DPSS) as a result of being advised either by a teacher, a doctor, a police officer, or an otherwise concerned individual that a situation exists that constitutes a danger to a child, which is not being addressed adequately in the family home. • Generally, a DPSS social worker will respond to a complaint regarding child abuse or child endangerment by instituting an investigation of the allegations and formulating an opinion as to whether DPSS intervention is required.

2. JURISDICTIONAL CONSIDERATIONS • Within a very short period of time thereafter, the matter is called before the court much like an arraignment in a criminal court proceeding at which time the court makes a preliminary determination as to whether sufficient facts exist to justify intervention of DPSS and to justify a petition being filed to have the child declared a ward of the court.

2. JURISDICTIONAL CONSIDERATIONS • The court will then maintain jurisdiction over this child and will maintain the child’s status as a ward of the court for a specific period of time (usually at least one year) and will require that all of the parties return to the court to reevaluate the situation at that time. • In certain cases, the juvenile court has the authority to terminate the parental rights of the natural parents and put the child up for adoption.

2. JURISDICTIONAL CONSIDERATIONS • Child custody jurisdiction is based upon the relationship of the state to the child, not to the parents. • Assuming the child is present in the state where the matter is being adjudicated, the court is fully empowered to make whatever orders it deems necessary and in the best interests of the minor child whether or not the parents are subject to the state’s personal jurisdiction.

3. THE UCCJEA • The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is designed to avoid competition between jurisdictions and conflicts between courts of different states in the resolution of child custody disputes. • The UCCJEA is also designed to assure that the litigation concerning custody takes place in the state where the child and the family have the most significant contacts (typically where the child lives) concerning the child’s care, protection, training, and personal relationships.

3. THE UCCJEA • It discourages continuing controversies in the area of child custody litigation that might otherwise occur if the parties could run from state to state or from jurisdiction to jurisdiction with impunity and attempt to relitigate the same issues over and over again. • The UCCJEA (or some similar version thereof) has been adopted by all states, the District of Columbia, and the Virgin Islands.

3. THE UCCJEA • The UCCJEA is subject only to the provisions of the Federal Parental Kidnapping Prevention Act (FPKPA). • This federal act is substantially similar to the UCCJEA and primarily makes matters involving parental kidnapping a question of “overriding federal policy.” • To the extent any of the provisions of the FPKPA conflict with the UCCJEA, the doctrine of federal preemption instructs that the FPKPA shall control (since it is federal law, and the UCCJEA is a state law).

3. THE UCCJEA • The Federal International Parental Kidnapping Crime Act of 1993 makes it a felony to remove or detain a child under the age of 16 outside of the U.S. with the intent to obstruct parental rights. • The defenses to a charge of violating this Act include acting pursuant to a valid court order, fleeing to avoid child abuse, and things of this nature.

3. THE UCCJEA • The Missing Children Act compels the FBI to maintain an extensive database of information related specifically to missing children. • This database will be made available to any parent who has reported a missing child. • The Federal Fugitive Felon Act authorizes the issuance of a federal warrant for the apprehension of a parent who takes a child in violation of any state’s felony child abduction laws and who then crosses state lines with the child to avoid prosecution.

3. THE UCCJEA • The Hague Convention generally provides a mechanism of uniformity in resolving child-related disputes across international boundaries, much as the UCCJEA seeks to achieve across state lines. • To invoke the Convention, the aggrieved parent or interested party files an application for assistance with the “central authority” of the member country that establishes compliance with the Convention’s procedures and an appropriate basis for invocation of its provisions.

3. THE UCCJEA • As a general rule, the Hague Convention will use the child’s “habitual residence” as the basis for its jurisdiction. • See page 82 for list of countries that are parties to the Hague Convention. • The Hague Convention applies to children under 16 years of age only, since these older children have a strong voice to determine where they wish to live in any event.

3. THE UCCJEA • The action must be brought within one year of the child’s removal, unless the facts show the child’s whereabouts had been deliberately concealed during that year. • The defenses to a Hague Convention Case are generally as follows: see page 83. • The fundamental analysis of a Hague Convention Case follows these lines: see page 83.

4. DEFINITIONS • a) Legal and Physical Custody • The concept of legal custody pertains to the right and responsibility of the legal custodian to make decisions relating to the child’s health, education, and welfare. • Civil Code section 1714.1 makes a parent who exercises legal custody and control over a minor liable for up to $10,000 in damages resulting from acts of the minor that caused death, physical injuries, property damage, or defacement of property with paint.

4. DEFINITIONS • Physical custody refers to where the child will reside. • The parent exercising physical custody over the child will be generally thought as the custodial parent while the other parent is commonly referred to as the visiting parent. • An award of physical custody is often considered much more significant than an award of legal custody because the parent with whom the child is residing typically will exercise the lion’s share of the decision making in issues pertaining to the child’s health, education, and welfare.

4. DEFINITIONS • b) Joint and Sole Custody • Sole physical custody means that the child will primarily reside with and be supervised by one particular parent, while the other parent will simply visit. • The right to make decisions regarding the child’s residence, health, education, and welfare will be shared by both parents if an award of joint legal custody exists. • Sole legal custody means that one parent only is the decision making parent concerning issues relating to the child’s health, education, and welfare.

4. DEFINITIONS • The concept of joint custody can be broken down into three basic categories: pure joint custody, joint legal custody, and joint physical custody. • In pure joint custody neither parent exercises exclusive control over legal or physical custodial rights. • All decisions relating to the child’s health, education, and welfare are shared jointly by both parents, and the child does not reside at any one parent’s house for significantly more than 50 percent of the time. • Under joint legal custody, the parents will share equally the rights and responsibilities to make decisions regarding the child’s health, education, and welfare.

4. DEFINITIONS • Joint physical custody contemplates that each parent has a significant period of physical custody. • This is typically thought of as shared physical custody, and under these circumstances the child will roughly split her time between the parents’ respective homes. • The child’s time does not need to be divided absolutely equally between the parents under a joint physical custody order. • Rather, all that is necessary is that the custody must be shared in such a way as to assure “frequent and continuing contact” of the child with both parents.

5. STATUTORY CONSIDERATIONS • The legislature makes it clear that when it comes to awarding custody of a minor child a fundamental aspect of this public policy is to assure frequent and continuing contact of that child with both parents. • This mandate may be disregarded only upon a finding that its compliance would be detrimental to the best interests of the minor children. • The history of abuse by one parent against the other parent is a significant factor in the court’s eye in making determinations as to child custody.

5. STATUTORY CONSIDERATIONS • Family Code section 3040 describes the statutory order of preference with respect to the legislature’s interpretation of the mandate of Family Code section 3011 (that is, making a custody award that is in the best interests of the minor child). • See page 100.

5. STATUTORY CONSIDERATIONS • The court cannot award custody to a person other than a parent, without the consent of the parents, until and unless it makes a finding “that granting custody to a parent would be detrimental to the child and that granting custody to a nonparent is required to serve the best interest of the child.” • Note that this is two prong test: The court must specifically find that awarding custody to the parent would be detrimental to the child and awarding custody to a nonparent would serve the mandate of Family Code section 3011 in the minor child’s best interests.

5. STATUTORY CONSIDERATIONS • The opinion of a teenage child will carry much greater weight with respect to this issue than that of a child under ten. • It is generally thought that by age 12 a child can form and express an intelligent, reasoned opinion on the subject of with whom he or she wishes to live. • Although the child does not have the unfettered decision-making power on this issue, the courts will start to give greater weight to the child’s preference at this more than at an earlier age.

5. STATUTORY CONSIDERATIONS • Family Code sections 3002, 3003, 3004, 3006, and 3007 set forth these definitions as follows: see page 102. • Family Code section 3080 provides that upon the mutual agreement of the parties to an award of joint custody, either in open court or by written stipulation, there shall exist a presumption affecting the burden of proof that joint custody is in the best interests of the minor child. • Assuming joint custody is not found to be in the best interests of the minor child, then the court must choose between the parents in awarding custody.

5. STATUTORY CONSIDERATIONS • Family Code section 3040 specifically precludes preference of one parent over the other simply on the basis of gender. • Neither can race nor religion, in and of themselves, be the basis for accepting or rejecting a parent as the custodial parent of a minor child. • Similarly, a parent’s economic status will not be the determinative factor in the child custody arena. • A parent’s particular sexual preference will not necessarily brand him or her as an unsuitable custodial parent nor will a physical or mental handicap act in this fashion.

5. STATUTORY CONSIDERATIONS • Finally, a decision by one parent to cohabit (live in a nonmarital union with a lover) will not be deemed a per se basis for disqualification as a custodial parent. • The focus is on the child’s needs for emotional stability and the parent’s ability to love the child and give the child ethical, emotional, and intellectual guidance. • While not an exhaustive list, the following sets forth some of the considerations the court have grappled with in this area of awarding custody and establishing visitation: see pages 105-106.

6. MEDIATION AND CONCILIATION • Family Code sections 3160 et seq. establish the statutory scheme for the mediation of contested child custody and visitation disputes. • The directive of these code sections is mandatory. • The parties have no choice as to whether to go to mediation. • The Code is quite clear that in any contested custody matter “the court shall set the contested issue for mediation.”

6. MEDIATION AND CONCILIATION • Nothing that occurs in mediation is binding upon the parties. • The mediator can only help to affect an agreement and is not empowered to make any orders on these issues of any kind. • The mediation process is provided free of charge through the superior court and is usually undertaken at the courthouse.

7. TEMPORARY CUSTODY AWARDS; MODIFICATION • The courts view the status quo of the minor child as one of the most fundamental determinative factors when approaching custody and visitation disputes. • The courts stress above all things the ability to achieve and maintain stability in the child’s environment when determining what is in the best interests of the minor child. • One of the best ways to achieve this stability is by maintaining the status quo.

7. TEMPORARY CUSTODY AWARDS; MODIFICATION • The parent who is first able to establish a stable and loving living environment for the child is in a much better position than the other parent to obtain permanent custody. • Custody determinations are typically not made ex parte. • Indeed, section 3064 of the Family Code clearly states that: see page 109.

7. TEMPORARY CUSTODY AWARDS; MODIFICATION • It is clear that once an initial custody determination has been made, any party seeking to change that custody determination must carry the burden of proof that a substantial change in circumstances has transpired that warrants reevaluating the earlier custody determination, thus making a new determination based upon the best interests of the child necessary. • One of the most common situations is that of the custodial parent desiring to relocate to another area of the state or country and take the minor child with her.

7. TEMPORARY CUSTODY AWARDS; MODIFICATION • Another situation that may give rise to a finding of change in circumstances is a marked change in the child’s performance at school. • Sometimes even the passage of time may be sufficient, provided it is coupled with some other significant effects of that passage of time. • The remarriage of a custodial (or noncustodial) parent may also provide a basis for a finding of changed circumstances, but this is a factual determination made on a case-by-case basis.

7. TEMPORARY CUSTODY AWARDS; MODIFICATION • In Burchard v. Garay, the Supreme Court held that when there had been no prior judicial determination on the issue of custody, evidence of a change in circumstances was not required before modifying a preexisting custodial scheme which had been in effect without a court order. • The Court continued, adding that although a change in circumstances need not be proven in the absence of a prior court custody order, the benefit to the child of a stable custodial arrangement cannot be ignored.

7. TEMPORARY CUSTODY AWARDS; MODIFICATION • The Burchard Court also emphasized the need, when the changed-circumstances rule did apply, for the proof of both changed circumstances and proof that change of custody was in the best interests of the child. • The Supreme Court placed the burden on the party seeking to modify that arrangement to show not only that, everything being equal, the child would be better off with him but that the change would be beneficial enough to offset the disruption caused by the modification of custody. • See Lester v. Lenane on page 112. • See Montenegro v. Diaz on page 113.

CALIFORNIA FAMILY LAW FOR PARALEGALS, 5 th Ed.