Elizabeth M. Lewis
n Child Custody And Visitation
n Out-of-State Custody
n Move-away Custody
n Paternity
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District Attorney Enforcement
n
Child Support
n
Spousal Support
CHILD CUSTODY AND VISITATION A. Types of Custody Orders Types of Custody Orders Legal custody orders determine which parent, or both, have the right and responsibility to make decisions concerning the health, safety, education and welfare of the child. Sole legal custody means that one
parent will have the right and responsibility to make these decisions; joint legal custody means that both parents will share that right and responsibility. Physical custody orders determine which parent that child will
reside with. Sole physical custody means that the child will reside with a particular parent, subject to the court's orders of visitation with the other parent. Joint physical custody means that each parent will
have significant periods of physical custody, such that the child will have frequent and continuing contact with both parents. Visitation Considerations in Making Custody/Visitation Orders The California legislature has declared that it is the public policy of the State of California to ensure minor children has frequent and continuing contact with both parents and that both parents share the rights
and responsibilities of raising their children, except when it is not in the best interest of the child. There are many factors the court considers in determining the 'best interests of the child', many of which are
summarized as follows:
1. Legal Custody
2. Physical Custody
B. Visitation
C. Considerations in Making Orders
D. Procedure to Establish Orders
E. Modification of Orders
Under
California law, child custody has two parts: legal custody and physical custody. Either type of custody may be awarded to one parent ("sole custody") or to both parents ("joint custody").
When one parent is awarded sole legal custody, the court
must award reasonable visitation to the other parent unless the court determines visitation would be detrimental to the child's best interests.
Custody
orders in California must be awarded according to the best interests of the child. This means that custody orders are not awarded according to the parent's interests and does not seek to achieve equity between the
parents.
-- court has no preference for sole or joint custody in contested hearings;
-- ensuring the child is free from domestic violence;
n
-- ensuring the child is free from child abuse;n -- amount of child's contact with both parent's;
n -- nature of child's contact with both parents;
n -- child's preference if the child is of "sufficient age and capacity" to form an intelligent preference;
n -- child's need for stability;
n -- child's need for continuity;
n -- child's emotional bonds
Procedure to Establish Custody/Visitation Orders
Mediation is required whenever it appears that the issue of custody or visitation regarding a minor child is contested, whether the order sought is an
initial order or modification of an order. Although the parties may agree to utilize the services of a private mediator, usually the initial mediation is scheduled through Family Court Services.
Family Court Services is a branch of the family court whose purpose is reduce any acrimony between the parties and assist the parties with developing a parenting plan which ensures close and continuing contact with both parents
that is in the best interests of the child.
In the event the parents are unable to reach an agreement at mediation, in San Diego County the mediator will then prepare and submit a recommendation based upon the input they have
gathered during the mediation. The recommendation is presented to the court for the court's consideration in awarding custody and visitation orders.
Modification of Custody/Visitation Orders
Child
custody and visitation orders may be modified at any time for as long as the child is a minor. The general rule in California is that a court may modify a custody and/or visitation order only upon a showing of a substantial
change in circumstances since the previous order was made.
OUT OF STATE CUSTODY A. Jurisdictional Conflicts Jurisdictional Conflicts However, when the
parties reside in different states, the issue will arise as to whether or not California courts have the authority to make orders concerning custody and visitation. This concept is referred to as to whether or not California
may exercise jurisdiction to make orders concerning custody and visitation. The issue of whether or not California may exercise jurisdiction over custody and visitation orders is governed by the Child Custody
Jurisdiction and Enforcement Ace (known as "UCCJEA"). If you, your child or the other parent do not live in California, most likely your custody and/or visitation matter will be subject to the rules of the
UCCJEA. California's ability to exercise jurisdiction will differ depending on whether the issue before the court is request for 1) an initial determination of custody and/or visitation; or 2) modification of a
prior custody or visitation order. Initial Custody Determination
B. Initial Custody Determination
C. Modification of Custody Determination
In most cases in which custody and/or visitation issues arise, no existing custody or visitation
orders have been made by any other state, and the child and all parties have been in California for a substantial period of time. In such cases, it is unlikely that another state will become involved.
Under the Uniform Child Custody Jurisdiction and Enforcement Act, California may assume jurisdiction if:
n California is the child's home state as the time the action is commenced; or
n California has been the child's home state within six months before the action is commenced; the child is absent from California; and a parent or person acting as a parent continues to reside in California.
MOVE-AWAY CUSTODY ORDERS
A. Considerations in Making Orders Considerations in Making Orders The legal standard applied to move-away issues will be different depending on whether the parties share joint physical custody or if one party
has sole legal custody. Sole Physical Custody
Joint Physical Custody Procedure to Obtain Move-Away Custody Orders As discussed above, there are different legal standard applied
depending on whether or not you have sole physical custody or joint physical custody. The court will look to the actual timeshare arrangement rather than the terms of the order and you should review what your timeshare
arrangement has been. Mediation is required whenever it appears that the issue of custody or visitation regarding a minor child is contested. Although the parties may agree to utilize the services of a private
mediator, usually the initial mediation is scheduled through Family Court Services. Family Court Services is a branch of the family court whose purpose is reduce any acrimony between the parties and assist the parties with
developing a parenting plan which ensures close and continuing contact with both parents that is in the best interests of the child. In the event the parents are unable to reach an agreement at mediation, in San Diego County the
mediator will then prepare and submit a recommendation based upon the input they have gathered during the mediation. The recommendation is presented to the court for the court's consideration in awarding custody and
visitation orders. Modification of Move-Away Orders Frequently, a party may re-locate with the minor child a substantial distance from San Diego
and there are no court orders granting the move-away because the parties were in agreement. However, the underlying court order for visitation is no longer reasonable since the parties are geographically separated. In
this instance, it may become necessary to file a motion to modify visitation to allow for a timeshare that considers the geographic distance between the parties.
1. Sole Physical Custody
2. Joint Physical Custody
B. Procedure to Obtain Move-Away Custody Orders
C. Modification of Move-Away Orders
In today's mobile society, it is often not uncommon for one parent to re-locate to another part of California or United States. When one parent seeks to move a substantial distance and take the child with him or her, the
parties may often find themselves in court to either allow or prevent the "move-away".
When a parent who has sole physical custody under an existing court order seeks to re-locate for a good-faith reason, the other parent who wishes to prevent the child's
relocation would seek a change of custody. The non-moving parent would need to establish that, as a result of the relocation, the child will suffer detriment rendering it essential that the court change custody.
When parents share joint physical custody under an existing order, and one parent seeks to relocate with the child, the nonmoving parent who seeks a change in custody to prevent the child's move need
only establish that the change of custody will be in the child's best interests.
If you are planning to re-locate or the other parent advises you they are contemplating
re-locating, and you are not in agreement with the move, you will need to file a motion with Family Court. You should review your present court order concerning custody and visitation as many San Diego County court orders
provide that a parent may not re-locate with the minor child without obtaining prior written authorization from the other parent of obtaining a court order.
Child custody and visitation orders may be modified at any time for as long as the child is a minor. The general rule in California is that a court may modify a
custody and/or visitation order only upon a showing of a substantial change in circumstances since the previous order was made.
In the event you have never
been married to the parent of your child, to establish parentage, the court must render a judgment of paternity. Either parent may file a paternity action. The actions are commonly filed where a party is seeking
child support, custody orders and/or visitation orders. In the event the custodial parent is receiving public assistance, the action will be filed by the county in which the aid is being paid.
If you are sued for paternity, you have certain rights and obligations concerning paternity:
You have the right to request genetic (DNA) testing. Genetic testing can be arranged nationwide for those parties who do not reside in the same geographic area. Genetic testing costs approximately $600.00 and
is usually borne by the party contesting paternity, subject to reallocation from the court. You have the right to remain silent You have the right to a court trial and to cross-examine witnesses. You have right to
counsel. In the event you cannot afford counsel, the court will appoint counsel to represent you.
When a parent is
receiving public assistance for their minor child, the county paying the aid may seek an order for child support to be paid by the non-custodial parent (parent not living in the home with the child). The county may
also seek an order for child support to be paid by the non-custodial parent when the parent with whom a minor child lives, registers their request for DA assistance to enforce or establish child support. If the parties
have an existing order for child support, the DA will enforce the existing support order and a party will receive notice of DA registration of the order. If the parties have never been married, the DA will commence an
action to establish paternity. Upon establishing paternity, child support orders will be taken based upon considerations discussed under this websites "child support" section. Once the DA has begun enforcement,
the paying parent will be court ordered to pay their child support to the DA's office. If you are sued for child support and ignore the lawsuit, the court will order an obligation for you to pay child support.
Many times the "default" order for support is higher than what you would be court ordered. Additionally, there are a number of strong actions the DA can take:
Wage garnishment driver's license suspension negative credit reporting tax refund interception
Many times a payor of support does not become aware of the default order until one of the above enforcement actions have been taken.