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Can the Other Parent Move if We Have 50/50 Custody?The basic fact to keep in mind is that California family courts cannot prevent a parent from moving away on their own. Under the United States Constitution, all adults are permitted to freely travel and move about the country, even if they share joint custody of children. As a result, family courts cannot resolve a ... Read...
The basic fact to keep in mind is that California family courts cannot prevent a parent from moving away on their own. Under the United States Constitution, all adults are permitted to freely travel and move about the country, even if they share joint custody of children. As a result, family courts cannot resolve a move-away dispute by restraining a parent from moving.
The family court can, however, make custody decisions about a child based on the assumption that a parent is going to move. (Marriage of Paillier (2006) 144 Cal. App. 4th 461, 464.) The court cannot restrict the right of the parent to move, but makes a determination on whether they may move the child. Custodial parents only have a presumptive right to relocate with their children – this right is not absolute, even if they have sole custody.
Can One Parent Just Decide to Move and Then Take the Kids?
Generally, a parent can move with a child so long as the relocation doesn’t interfere with the current custody arrangement. In addition, the move must not be detrimental to the child’s rights or best interests. When it comes to moving away with a child, parents who share joint custody are restricted by the terms of their custody order.
How Do You Handle Moving When There Are Kids Involved and You Share 50/50 Custody?
If the parents currently share joint physical custody, they enter the courtroom on a level playing field. In such a case, the court must approach the move-away case de novo. In other words, the court essentially decides from scratch what custody arrangement is in the child’s best interest (see California Family Code 3011, 3020, 3040).
California courts will consider your custody arrangement anew based on the circumstances of your move and the best interests of your children. For this exercise, the courts will analyze a new parenting schedule assuming that the parent moves.
In other words, assuming that the parent moves, what custody schedule would be in the best interests of the children, and what would be best for the child in terms of which parent they live with.
When deciding a move-away case, California family courts will consider a litany of things, including:
- How far you’re moving away
- The reasons you’re moving
- Whether the move will present a detriment or benefit to your children
- Whether the move is ultimately in your children’s best interests
- The age of your children and their relationship with each parent
- The children’s interest in continuity and stability in their home life
- The parents’ ability to cooperate and communicate effectively
- How custody is currently split between the parents
- The preference of the children if they are mature enough for such an inquiry to be appropriate
Whether you are the moving or non-moving parent, both parties come to a “level playing field” at the child custody hearing. Here, you get a chance to negotiate a new custody arrangement.
Move away cases are very complex legal matters. They can be particularly frustrating, because the law can be very confusing and move-away orders can be difficult to obtain if both parents want to be involved in their child’s life.
If you have your sights set on a move with your children, you have your work cut out for you, but having a knowledgeable California child custody attorney in your corner can greatly improve your chances of obtaining the result that you seek.
Call the move away and relocation attorneys Talkov Law at (844) 4-TALKOV (825568) or contact us online for a free consultation about your case. Our attorneys have been able to help parents come to child custody agreements when possible, and litigated custody cases when necessary throughout the State of California.
Our knowledgeable family law attorney,
Colleen Talkov, can also help if you have questions about any of the following:
Supervised Visitation FAQsSupervised Visitation FAQs What is Supervised Visitation? The public policy of the State of California is to protect the best interests of children whose parents have a custody or visitation case within the family courts. Custodial stability, continuity, and a loving parent-child relationship have been classified as the most important criteria for determining a child’s ... Read...
Supervised Visitation FAQs
What is Supervised Visitation?
The public policy of the State of California is to protect the best interests of children whose parents have a custody or visitation case within the family courts. Custodial stability, continuity, and a loving parent-child relationship have been classified as the most important criteria for determining a child’s best interest.
Sometimes, based on issues of safety and protection, a California family court will order that a child only have contact with a parent when a neutral third person is present during the visitation. This type of third-person visitation arrangement is called “supervised visitation” or “monitored visitation.”
The court order will specify the time and duration of the visits. Sometimes, the court order will also specify who will provide the supervised visitation services and where the visits will take place.
When Does the Court Order Supervised Visitation?
California child custody laws emphasize the importance of a child maintaining frequent and continuing contact with both parents, but that rule is not absolute. The exception to the rule is when such a custody arrangement is not consistent with the child’s best interest and where there may be conditions that make visitation uncomfortable or even unsafe for a child.
In those scenarios, supervised visitation may be an appropriate option. Family Code § 3200.5(b) requires the California family court to determine whether supervised visitation is necessary or not. Supervised visitation is typically ordered by the court on order to give the non-custodial parent the chance to work through their issues and enhance the parent-child relationship. If a child’s safety or well-being are at issue, there are a number of reasons why the court may order supervised visitation, including:
- When there are allegations of domestic violence, child abuse and neglect, or substance abuse;
- To give the visiting parent a chance to address specific issues;
- To help reintroduce a parent and a child after a long absence;
- To help introduce a parent and a child when there has been no existing relationship between them;
- When there are parenting concerns or mental illness; or
- When there is a parental threat of abduction.
Parents may be able to establish a parenting plan and agree on the supervised visitation provider. However, if parents disagree on a parenting plan or provider and depending on the nature of the situation, the court will specify the time and duration of the visits, and may also specify where the visits are to take place and who is to supervise the visits.
California family courts have wide discretion to consider any factor that may be relevant to visitation if it affects the health, safety, and welfare of the child. Thus, if supervised visitation is ordered, keep in mind it will be because the judge deems it to be in the best interest of the child.
The court can use the visits to gauge how likely the non-custodial parent is to cooperate with the custodial parent to meet their child’s needs, how likely the non-custodial parent is to follow court orders, and how beneficial it is to the child to have a relationship with the non-custodial parent. On the flip side, if the non-custodial parent doesn’t take the order seriously or fails to exercise their visits, the court will notice that, too.
Who Can Supervise Visitation? [Professional Supervisors vs. Non-professional Supervisors]
There are two types of supervised visitation providers under Family Code § 3200.5:
- Professional Visitation Providers – any person who is paid for providing supervised visitation services, or an independent contractor, employee, intern, or volunteer operating independently or through a supervised visitation center or agency.
- Non-Professional Supervisors – any person who is not paid for providing supervised visitation services. Typically, a non-professional provider is a family member, friend, or acquaintance.
While choosing a non-professional supervisor may be an attractive option in order to save on costs and have a familiar face at the visits, selecting a non-professional provider frequently does not work out for various reasons.
First, it can be difficult for parents to find a neutral supervisor on whom they both agree. Second, although friends and relatives may be quick to agree to provide supervision, they also may be unable to maintain their regular supervising commitment or find it difficult to refrain from taking sides. This usually leads to one or both parents refusing to continue utilizing the supervisor. Lastly, having a friend, relative, or acquaintance as a supervisor may detract from the visiting parent and child’s time together because the child or visiting parent may be tempted to spend time interacting with the familiar supervisor, rather than focusing only on the visits.
A professional provider must satisfy more stringent standards for education and training requirements, be well-trained in supervising techniques, and have experience in facilitating safe and supportive visiting environments. If there are concerns about domestic violence, child abuse and neglect, sexual abuse, or abduction, parents may benefit from choosing a professional provider who has been trained in those issues and clearly understands the specialized knowledge and skills required for those types of cases and concerns.
What Does a Visitation Monitor Have to Do?
The supervisor is there to make every effort to keep the child safe and support the child in enjoying the visit with the supervised parent. The provider must be present at all times during the visit, listen to what is being said, and pay close attention to the child’s behavior. If necessary, the provider may interrupt or end a visit.
Whether a paid professional, family member or friend, the provider’s job is to make sure that the children involved in the visits are safe and free from any unnecessary stress.
Supervisors should follow three basic rules:
- Never leave the child and parent alone. Keep the supervised child(ren) in your line of sight and range of hearing at all times during the visit.
- Interrupt inappropriate talk. Step in if the parent discusses inappropriate topics such as the court case or the other parent, or makes false promises such as, “Soon you will be allowed to live with me.”
- Keep records. Keep a log of visits you supervise and take notes summarizing each visit. Note any out-of-the ordinary events, such as if the parent makes in appropriate conversation or the child is injured during the visit.
How Should a Visiting Parent Deal With Supervised Visitation?
Parents who have been ordered to participate in supervised visitation as part of a child custody matter often experience a wide range of emotions. The visiting parent may feel like they are being punished and it may be uncomfortable trying to engage with their child while someone else is just sitting there watching. They may feel angry because they believe that the other parent manipulated the situation and because they believe that they deserve more than what they got.
However, the visiting parent’s patience and commitment to the child are critical during this time.
If you are a visiting parent, do your best to focus on your relationship with your child and try not to displace any anger against the other parent, the courts, or the fact that supervised visitation was ordered. Here are some tips to make the most of a supervised visitation arrangement:
- Arrive on time and keep your appointments. Factor in commute time and make sure you have enough time before each visit to arrive on time. The custodial parent will probably tell the child about the visit and the child may be looking forward to seeing you. Flaking on plans will erode your child’s trust.
- Get your head in the game. Before each visitation, take a few minutes before your parenting time to clear your mind and get ready to focus on your child. It may sound easy enough, but it’s important to not let outside worries or personal issues impact your visit. Listening to your favorite music, meditating, or using a calming app on your phone can help get you focused for your parenting time.
- Be prepared. Bring sunscreen and a hat for the child if you will be outside. If you plan to order food, ask the other parent what the child likes and whether he or she has an allergy. Before the visit, ask the other parent what size diapers the child needs, what toys they like, what time they usually eat dinner, whether they will eat before the visit, etc. If the visit is not at a facility, make sure you bring an age-appropriate activity such as a coloring book or board game.
- Be positive. If you ignore the awkwardness, it will be easier for your child to ignore it, too. Prepare to talk about light, kid-friendly topics.
- Avoid discussing the court case or terms of the visit with your child.
- Avoid quizzing your child about the other parent’s activities and relationships.
- Play with the child. Don’t just watch. Young children can be difficult to talk to when distracted. Show them you care by connecting on their level.
- Avoid making your child a messenger to the other parent.
- Talk about the child’s interests. Ask your child about what they are doing in school, their friends, their hobbies, their favorite TV shows, music, etc.
- Say brief and warm good-byes to your child when the visit is over. Tell your child that you look forward to seeing them again.
- Give yourself breathing time afterward. If possible, try not to schedule any appointments or meetings immediately after your visit. Knowing that you have another commitment right after your visit may serve as a distraction during your parenting time and may make you feel rushed and stressed out during the visit.
- Keep a journal to reflect on your visits.
How Should a Custodial Parent Deal With Supervised Visitation?
Supervised visitation may also be a stressful and challenging situation for the custodial parent. If you are the custodial parent, you may feel resentful. You may feel like you do all the parenting of the children and like the other parent doesn’t deserve to even see the kids. You may even feel like the visits are harmful to your children because the other parent is too unfit to adequately meet their needs.
These concerns are completely understandable, however, it is equally critical for the custodial parent to demonstrate from the outset the willingness and ability to cooperate in parenting. Here are some tips to assist custodial parents in the supervised visitation process:
- Explain to your child where and when the visits will take place. Be sure to discuss the visits with your child beforehand and mark the date on a calendar that your child has easy access to. This will help keep your child aware of when they see the other parent next and how frequently.
- Be prepared. Have your child ready with anything they will need during the visits.
- Arrive on time to drop off and pick up your child.
- Reassure your child that you support them in having a pleasant visit. Encourage your child to look forward to the visits, even if either you or your child have negative feelings about the visits. Always support your child in their efforts to build a relationship with the other parent.
- Be cooperative. Inform the other parent that you are sending the child with homework if they have an assignment. Tell the other parent about the child’s likes and dislikes, even if the other parent doesn’t ask. Helping prepare the other parent will ensure your child has a good time.
- Avoid making your child messengers to the other parent.
- Avoid quizzing your child about the visit. Do not question or interview them about the visit or the other parent. Instead, allow your child to share as much information as they want.
How Can I Find a Supervised Visitation Location?
Contact or check with your local Family Court Service office in your local court. Generally, each county Family Court Services office has a list of providers in your area. Click here to find your local Family Court Services office.
What Can a Non-custodial Parent Do to Get Unsupervised Visitation?
Although supervised visitation can be a very difficult situation for both parents and the child, fortunately, supervised visitation is usually only temporary and allows parents to maintain contact with their children despite the challenging circumstances.
Once the judge orders supervised visitation, the order generally remains in place until a parent can demonstrate that there has been a change in circumstances. A change in circumstances can include one parent’s decision to move, a parent’s successful completion of rehabilitation or counseling, or other positive changes that impact a parent’s suitability. The parent who wishes to change the supervised visitation order must return to court and request that the order is modified to reflect the change in circumstances.
Courts often condition supervised visitation on some other requirement. For example, commonly supervised visits are conditioned on the non-custodial parent’s taking certain steps toward self-betterment – for example, entering rehab, undergoing a domestic violence assessment, attending anger management or co-parenting classes, and attending reunification therapy with the child. Supervision may be lifted or adjusted if the visits go well for a certain period – for example, six months.
Court-ordered supervised visitation is often a steppingstone toward more substantial, unsupervised visits between the child and the noncustodial parent. If both parents and the supervisor take the visits seriously and keep the focus on the health and happiness of the children, it will demonstrate that they are able to co-parent and the court will look more favorably on both parents.
Contact a California Child Custody Lawyer Today
The unprepared and those who try to handle their own contested child custody cases face a difficult time. It’s not a task you can undertake alone.
Parents can rely on the experience of our child custody attorneys in California in obtaining child custody orders, stipulated custody agreements, and judgments. Contact Talkov Law in California at (844) 4-TALKOV (825568).
Our knowledgeable family law attorney,
Colleen Talkov, can also help if you have questions about any of the following:
How to Register and Modify an Out-of-State Child Custody Order in CaliforniaParents are sometimes involved in a custody dispute that involves more than one state. Another state might issue a child custody order, but the child and/or a parent is in California. Registering an out-of-state custody order is a necessary step before a parent can seek enforcement or modification of the order. Find out how to ... Read...
Parents are sometimes involved in a custody dispute that involves more than one state. Another state might issue a child custody order, but the child and/or a parent is in California.
Registering an out-of-state custody order is a necessary step before a parent can seek enforcement or modification of the order. Find out how to register and modify an out-of-state child custody order in California here!
Registering an Out-of-State Child Custody Order in California
The Full Faith and Credit Clause of the U.S. Constitution provides that every state is to recognize the judicial proceedings of every other state. However, in order for the California court to enforce an out-of-state custody order, it must first be registered in California. Registering the order makes the state of California aware of the order, allowing it to be enforceable.
When parents get a child custody order in another state, they sometimes want the other state’s order filed in California just in case problems arise in California later. This is called “registration.” This lets the California courts know about the other order.
Registering an order in California does not transfer an entire case to California. A California family court generally will not have the power to change the custody order, since the original state that made the order usually keeps that power. Registration just means that a California judge will be able to enforce the custody order if problems come up later (for instance, if the child is in California and a parent will not turn over the child to the other parent).
How to Register a Custody Order in CA
There are several steps required to register another state’s custody order in California:
- Fill Out the Paperwork
- File the Paperwork
- Wait and See What the Other Parent Does
In order to register out-of-state custody and support orders, you must file the following with the California court:
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Two copies of the out-of-state order, including one certified copy,
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Registration of Out-of-State Custody Order form (Form FL-580), and
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Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (Form FL-105).
You can obtain a certified copy of the out-of-state order by contacting the clerk of the court where the order was originally made.
As part of the FL-580 form, you must include the contact information of the other parent so that the court can send the other parent notice of your request to register the custody orders. Once the court receives the registration filing, the court will send the notice of the registration to the other parent. The other parent has 20 days from the date the notice was mailed to them to contest the registration. The contest must be in writing and filed in the court case.
The bases for contesting the registration must be one of the following:
- The issuing court did not have jurisdiction to issue the custody order.
- The out-of-state order has been vacated, stayed, or modified by a court having jurisdiction to do so.
- The other parent was entitled to notice of the original order, but did not receive proper notice.
Modifying an Out-of-State Child Custody Order in California
In general, registration of an out-of-state order in California does not mean that the order can or will be modified. In fact, according to Family Code § 3446(b), a California court “shall recognize and enforce, but may not modify [unless the California court has jurisdiction to modify], a registered child custody determination of a court of another state.”
How to Modify an Out-of-State Custody Order Once Properly Registered in CA
Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), a California court may only modify another state’s custody order if the following criteria have been met:
- The California court has jurisdiction to make an initial custody determination [meaning the child has lived in California continuously for at least 6 months]; AND
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- The court of the other state determines that it no longer has exclusive, continuing jurisdiction; OR
- Neither the child nor either of the parents still reside in the state that issued the order.
Contact a California Custody Lawyer Today
Understanding and litigating multi-state custody matters can be difficult to do on your own. If you are unsure what to do or what state to go to for help, it is always best to consult with an attorney. Contact a California family law attorney to help you understand how to register and modify an out-of-state child custody order in California. They can help you through the process and fill out the appropriate forms to ensure a smooth transition between state courts.
Parents can rely on the experience of our child custody attorneys in California. Contact Talkov Law in California at (844) 4-TALKOV (825568).
Our knowledgeable family law attorney,
Colleen Talkov, can also help if you have questions about any of the following:
Things Courts Consider in Child Custody CasesIf two parents are unable to reach an agreement on a parenting plan either on their own, through their child custody attorneys, or through mediation, then a family court judge will step in to make a decision after giving each of the parents the opportunity to present their case. Judges have the freedom and ability ... Read...
If two parents are unable to reach an agreement on a parenting plan either on their own, through their child custody attorneys, or through mediation, then a family court judge will step in to make a decision after giving each of the parents the opportunity to present their case. Judges have the freedom and ability to consider a wide range of factors in reaching their decision about how a custody arrangement is going to work.
Factors Family Courts Consider to Determine the Custody of Children in California
Every child custody case comes down to the best interests of the child. That is the legal standard used by every California family court for matters relating to a child. This is a flexible test that allows judges to consider numerous factors. Courts want children to be in the best possible situation. The general presumption is that both parents should play a role in their child’s life. Without any evidence presented to the contrary, that is generally assumed to be in the best interests of a child.
While it’s impossible to predict exactly how the judge will rule in your case, you can anticipate that the judge will consider the factors discussed in this article in making a decision regarding what is in your child’s best interests.
1. The Current Status Quo Custody Arrangement
Generally, a family law judge will not suddenly award custody to a parent who was not previously involved in their child’s life. Parents stand a better chance of being awarded custody if they have a track record of participating in major decisions regarding the child and spending time with them.
The family court wants to maintain continuity to the fullest extent possible and not introduce major changes if they are not necessary. In a sense, custody is a privilege, and a judge will not award it to someone who did not fully participate in their child’s life beforehand.
What “is” the status quo sometimes remains the status quo in a child custody case. In other words, if there has been a schedule that the parents have followed for any significant time and that has worked for the kids, courts may look to that status quo as the basis for any ongoing orders. What’s more, even if one parent claims that the current schedule is not ideal, without good reason and evidence to change the arrangement, the court may still be inclined to maintain the status quo, even over the objection of one parent.
Does that mean the family law court will always keep things the same? Of course not! Our child custody laws may place a premium on stability and continuity, but custody arrangements and orders can always be modified.
If you are the custodial parent who is facing a modification request, consider whether the status quo has been working and how you’re going to advocate to the court that things should say the same.
If you are the noncustodial parent, you should be prepared to explain to the court why the status quo is not consistent with the child’s best interest. This is especially true if the status quo on the custody and visitation has been a temporary departure from how it used to be.
Note: There are exceptions to the “status quo” under California child custody laws. For example, California child custody laws do not permit a family law judge to consider one parent’s absence or relocation from the family residence so long as the absence or relocation was all of the following:
- of a short duration,
- the parent who was absent demonstrated an interest in maintaining custody or visitation,
- the parent maintained or made reasonable efforts to maintain contact with the child, and
- that parent’s behavior is not consistent with an intent to abandon the child.
Noncustodial parents have more rights than they realize and they are not as stuck with the status quo as they may think. California child custody laws are designed to provide both parents with frequent and regular contact with their children when it is in the children’s best interest.
2. The Co-Parenting Relationship Between the Parents
One of the foundational elements that a family law judge takes into consideration before making a decision is whether one parent is frustrating or preventing communication or refusing to engage in co-parenting.
The reason for this is simple – California custody laws favor both co-parenting and communication and expressly provide that a parent who is unwilling to engage in both may not be fit to have joint or primary custody.
The court will consider the relationship between the parents to avoid instituting an arrangement that has little chance of success from the start.
Keep in mind that every single parent believes that he or she is the one trying to co-parent, while the other parent is the problem. This is very rarely the case. Communication is a two-way street.
3. The Relationship Between the Child and Each Parent
The level of emotional bonding that the child has with each parent is a strong consideration in a custody case. Bonding isn’t just an issue of parenting time. The days a parent spends with the kids is important, but bonding goes deeper. It is the level of attention and caring and the child’s response and closeness to that parent that matters. The basic issue is quality, rather than quantity.
It could be that one parent has spent much more time with the child and has a much deeper relationship. To separate the child from that parent would compound a difficult situation and make it worse for the child. Courts could disproportionately divide custody when a child has a strong attachment to one parent, although a judge will not want to prevent the child from developing a strong relationship with the other parent.
Conversely, a child may be craving more time with the parent they have historically spent less time with because, for whatever reason, they have a deeper relationship with that parent.
Parents who are not bonded with their children as a result of their own misconduct may face a tough time in custody and visitation cases, but the situation is not hopeless. Even if a bond has not been established, it sometimes can be; and if it is weak, it can be strengthened.
Bonding is also a function of a child’s age, maturity, temperament, and interests; along with a parent’s personality and stability.
4. The Physical Location of the Parents and Child
Courts will not want to place a child in a difficult position by forcing them to travel long distances between their parents’ homes often. They recognize that children need to go to school and must have time to be themselves and enjoy life as kids. Judges will not want children in a physically or emotionally taxing situation.
That being said, when parents do not live near one another, travel is inevitable and necessary. The court will want to minimize the travel and stress on the child, but it cannot be eliminated in such a situation. For this reason, custody schedules generally give the noncustodial parent less frequent visitation, but the visitation is for longer periods of time.
For example, if a plane trip is required to travel between homes, a common schedule for the non-custodial parent may be 4-6 weeks over the Summer, half of the Winter break, alternating Thanksgiving breaks, alternating Spring beaks, and some long weekends throughout the school year. This can end up being about 30-40% custody time, to put it into perspective.
When parents reside within close proximity, the likelihood of a more equal schedule and timeshare is obviously much higher.
5. The Preference of the Child
California law does not provide that children get to unilaterally decide their own custody schedule. However, the older the child, the more weight a judge will give to their preference. Under California Family Code § 3042, children over the age of 12 will get some say in where they live, but it is up to the court to make the final decision based on the best interests of the child.
While the court may consider a child’s preference, keep in mind that this is only factor court consider in child custody cases.
California child custody laws give the Family Court discretion and of course issues such as the child’s maturity, parental influence, and alienation play a role in whether the court will act on a child’s preference. The “why” behind the preference can often become more important than the preference itself.
6. Any Documented History of Domestic Violence or Child Abuse
Family courts and California’s child custody laws take child abuse and domestic violence allegations very seriously.
A parent with a history of domestic violence or child abuse is going to face an uphill battle in seeking any kind of custody. This is because California child custody laws provide that a parent who has been found to have committed domestic violence within the last 5 years must overcome a legal presumption that it is not in the children’s best interest for him or her to share joint custody or have sole/primary custody.
The court has many options available to it when faced with an allegation of abuse to a child.
Typically, the allegation comes from one of the parents. When either parent makes such an allegation, the court can do any of the following:
- Set the matter for hearing and take testimony of the parties and witnesses: These hearings can be lengthy especially if the abuse has been ongoing for a significant period of time or the abuse is serious.
- Refer the matter to a social services agency for investigation and reporting to the court. Family Code § 3027 provides the authority for the family court to order a social services agency, such as child protective services, to conduct such an investigation and provide a report of findings back to the court.
- Order a child custody investigation. Depending on the county, the court may order an in-house investigation that is conducted by an employee of the court who has social services and investigative education and experience, called a CCI (common in Orange County). Other counties do not offer such investigations.
- Appoint a child custody evaluator to investigate the allegations and report back to the court with recommendations. Family Cod § 3111 and Evidence Code § 730 provide the authority for the family court to order such an evaluation. It is important to note that when there are general allegations of child abuse, the Family Court has wide discretion to appoint an evaluator. However, if the court determines there has been a serious allegation of child sexual abuse, the court must order an evaluation assessment or investigation pursuant to California Family Code § 3118.
7. Parental Alienation of Either Parent [Interfering With the Parent-Child Relationship]
We have written articles about parental alienation in a California child custody case. However, it does not have to get to the point of actual alienation for the court to factor in unreasonable conduct by a parent and interference with the parent-child relationship.
Uncooperative parenting and interfering with the other parent’s rights may even lead to a change in custody. Court ordered joint legal custody and parenting time are not suggestions. They are mandates.
If one parent has been uncooperative (and that phrase is not specifically defined by our custody laws) and that has adversely affected or may adversely affect the child’s relationship with the other parent, the court will take such misconduct into consideration.
The weight the court gives such behavior will depend on the extent of the misconduct and the other facts surrounding the case. This is good news for parents who communicate and co-parent and bad news for those that don’t.
8. False Allegations of Abuse by a Parent
False allegations of child abuse happen far too often in California child custody cases, and unfortunately, there are rarely ramifications for such conduct.
Fortunately, California family law continues to grow teeth in dealing with false child abuse and neglect cases. The law states any witness, party, or party’s attorney who knowingly makes a child abuse or neglect accusation that is false during a child custody proceeding may be monetarily sanctioned in a reasonable amount.
The issue often becomes proving the “knowingly” element, which can be nearly impossible under many circumstances.
However, perhaps more importantly, the Family Court has the discretion to order supervised visitation or otherwise limit a parent’s custody and visitation in the face of such knowingly made false allegations. This occurs if the court finds there has been substantial evidence the parent has made a report of child sexual abuse during the custody proceeding, or at any other time, and the parent knew the report was false.
9. Substance Abuse by a Parent
For an extensive look at the issue of drug and alcohol testing in child custody cases, check out our article on that topic.
Evidence that one parent is habitually or continually using illegal drugs, abusing alcohol, or abusing controlled substances such as prescription medication can factor into the court’s decision-making process in custody cases. This is especially true if the conduct occurs during that parent’s custodial time, as this conduct puts the child at risk.
10. Parental Abandonment of the Child
The fact that a parent has “abandoned” the child can be taken into consideration when assessing the fitness of that parent as a custodial one. Generally, “abandonment” encompasses more than simply being less involved than the other parent, and refers to a parent who voluntarily has no contact with his or her child for an extended period of time (i.e. years).
That means that if a parent seeks to become the primary custodian of a child, his or her abandonment is a factor the court can weigh when assessing the children’s best interest. Again, the court is not generally going to pluck a child from the care of a primary caretaker and hand them over to a parent who has not been present, let alone actively involved in their child’s life.
11. Criminal Convictions of a Parent
California courts do not turn a blind eye to a parent’s criminal history and record.
When a parent has a significant criminal history, including but not limited to one that involves violence or substance abuse, the family law court has the discretion to take that into consideration when assessing the child’s best interest.
However, it is not enough to point to a parent’s history and based on that alone conclude or assume that the parent is a danger to the child. Like most issues, the end result does depend greatly on the individual facts of the case.
Certain specific child abuse crimes, including but not limited to those that require registration as a sex offender, trigger a whole different standard under California law.
In such situations, the court must not award custody or unsupervised visitation to a convicted parent unless the court makes a finding that there is no significant risk to the child. California child custody laws are strict in such cases, and overcoming that presumption is not an easy task.
The laws regarding registration as a sex offender include those situations where the parent has a registered sex offender residing in his or her house.
California Family Code § 3030 provides that this felony conviction is actual evidence that the child is at significant risk and a presumption is created that it is not in the child’s best interest to have unsupervised contact with this individual.
12. Abduction of Child – Threatened or Actual
California Family Code § 3048 addresses the issue of abduction. The court must consider the following questions when evaluating the risk of abduction in a custody case:
- Has the parent engaged in activities that are consistent with planning a removal of the child. This may include selling a residence, terminating a lease, quitting a job, closing bank accounts or liquidating assets, applying for a passport, purchasing airline tickets, or making other travel arrangements.
- Has the parent previously taken the child away or enticed, withheld, or concealed the child in violation of the other parent’s custody and visitation rights?
- Does the parent lack strong ties to the State of California?
- Does the parent have strong familial, emotional, or cultural ties to another state or another country?
- Does the parent have a history of parental noncooperation, child abuse, or the domestic violence?
- Does the parent have a criminal record?
- Does the parent have financial reasons to stay in California? Courts typically will look at the parent’s employment, both the nature and extent of it, and whether the parent can work from anywhere, is financially independent, or whether that employment is or is not strongly connected to the State of California.
The focus of Family Code § 3048 and caselaw interpreting it is to prevent the unlawful removal of children in violation of the other parent’s rights. Family courts rarely hang their hat on one factor or another. It is the culmination that matters.
Orders Against Child Abduction The California Family Court Can Make
California child custody laws allow the court to do any of the following when child abduction is a proven risk:
- Order professionally supervised visitation.
- Require the parent to surrender travel documents such as a passport or anything else that the court deems is necessary.
- Prevent a parent from applying for a new or replacement passport.
- Require a parent to post a bond as a means of financial deterrent.
- Make orders that restrict the parent from removing the child from the State.
- Place restrictions on travel.
- Make orders that require the parent to notify a foreign consulate or embassy of the passport and travel restrictions.
- Require the parent to register the California custody order in another state (or country, if the country will do so and will comply with California’s child custody laws).
- Make orders that require the traveling parent to provide an itinerary, copies of round-trip airline tickets, a list of all of the addresses and phone numbers where the child will be staying and can be reached, and even an open airline ticket for the non-travelling parent in the event the child is not returned in violation of the court order – though this is rare.
13. Special Needs of the Child
A child’s individual needs should always be considered when coming up with a plan for child custody, but when a child has any kind of special medical, psychological, or educational needs, those needs will be considered by the court in determining what is in the best interest of the child.
For example, if the court is faced with a child with autism spectrum disorder (ASD), the key issue at hand may be the child’s need for consistency and routine. Courts generally understand that children on the spectrum are unique, and that their needs are just as unique as they are. The court is thus challenged to grasp the entire scope of what co-parenting a child with ASD entails in fashioning orders.
14. California’s Public Policy Mandate of Frequent and Continuing Contact
California child custody laws require that custody orders ensure the children have frequent and continuing contact with both parents and to share in the rights and responsibilities of raising the child.
Note: there is an exception to this general rule when such an order is not consistent with the child’s best interest. This generally refers to a finding of domestic violence by a parent under Family Code § 3044.
Notice that this frequent and continuing contact rule is not specifically defined. It does not have specific elements that the court must follow. Once again, the family court is given “discretion” (notice how many times that word is used when talking about California child custody law?) to determine how much frequency and continuity should occur in a custody arrangement.
That, however, does not mean that the family court can do whatever they want. The judge cannot give preference to a gender, or arbitrarily give sole custody to a parent and must base his or her decisions on the facts and law.
Contact a California Custody Attorney Today
It’s important to understand that the judge is not making decisions to hurt or punish one or both of the parents. The decision is based solely on the best interest of the child. The court wants to make sure your children end up in the best situation possible.
The unprepared and those who try to handle their own contested child custody cases face a difficult time. Getting the child custody arrangement you want requires convincing the judge of your parenting skills, empathy, and resourcefulness. It’s not a task you can undertake alone.
Parents can rely on the experience of our child custody attorneys in California in obtaining child custody orders, stipulated custody agreements, and judgments. Contact Talkov Law in California at (844) 4-TALKOV (825568).
Our knowledgeable family law attorney,
Colleen Talkov, can also help if you have questions about any of the following:
Child Custody Guide for DadsCalifornia family law judges try to ensure that the decisions they make are in the best interest of the children involved. In the absence of concerns such as abuse or substance use issues, when awarding full custody to one parent is best, this often means maintaining contact and relationships with both parents. A Father’s Guide ... Read...
California family law judges try to ensure that the decisions they make are in the best interest of the children involved. In the absence of concerns such as abuse or substance use issues, when awarding full custody to one parent is best, this often means maintaining contact and relationships with both parents.
A Father’s Guide To Child Custody: Child Custody Tips for Dads
Many fathers who are seeking custody of their children quickly become discouraged because the reality is that mothers are disproportionately given primary custody of children regardless of the family’s situation. Don’t fall victim to the common misconception that fathers cannot obtain joint, primary, or even sole custody of their children.
The information in this dad’s guide to child custody can help fathers properly prepare for the realities of a child custody case.
1. Be Realistic and Honest with Yourself
It’s essential that you are honest with yourself about what you can manage on your own practically, financially, and otherwise. Being a full-time single parent and holding a full-time job can be challenging.
While full custody may be what you want, it may simply not be realistic. Think of all of the responsibilities that you juggle on a daily basis and how you will manage them while being a single parent.
Determine what you truly can and cannot do, and be clear about that with others. This will improve the likelihood that your request will be taken seriously.
Be prepared to explain how you will balance competing responsibilities.
- Can you leave work to tend to a school emergency involving your child? If not, what plans have you made to ensure that your child’s needs are met?
- Will you be there to help with homework? If not, have you made plans for your child to have someone there to help them?
- If your work involves travel, have you made plans for child care, including transportation to and from school and extracurricular activities?
These are just a few questions that need to be considered.
2. Be Actively Involved in Your Child’s Life
In addition to making sure you can take care of a child’s basic and practical needs, the court will look for evidence of a meaningful relationship.
While you may feel a strong connection with your child, the judge is looking for objective expressions of that as well.
Whether you are still living with your children and their mother or living apart, the most important thing you can do to demonstrate that the children should live with you is to be a hands-on dad who is actively involved in his children’s lives. If you are living apart from the children, make visits a priority despite any inconvenience to you. It’s imperative that your kids know you’re still as much a part of their lives now as you were when you resided with them.
For example:
- Do staff members at your child’s school know you? Have you met with them about academic progress? Do you attend parent teacher conferences and IEP meetings?
- Do you attend your children’s social, educational, religious, and other important events? (E.g., school plays, birthday parties, awards ceremonies, after-school activities, and sports events)
- Do you know who your child’s best friends are? Do you know their parents?
- Do you take your child to their medical and dental appointments?
If the court’s investigator, a child custody mediator, or a guardian ad litem (someone appointed to represent the children’s interests in a custody case) contacts any of these individuals, they may provide invaluable support in confirming your involvement with your child. What these impartial adults have to say matters.
If you are living apart from your child, keep in touch through video chats or by phone. Don’t let your child get used to living without you!
3. Pay Child Support
Even if you don’t make your ordered child support payment on time, you’re still entitled to the custody or visitation that the court determines is in your child’s best interest. However, failing to keep up with your payments can be interpreted as a lack of interest in raising your child. If you are struggling to make payments, you can request a modification. But you shouldn’t attempt to get full custody just to eliminate paying child support.
Even if you have no court-ordered child support obligation, keep records of whatever you pay or provide for your child’s support.
- Do you write checks to your child’s other parent?
- Do you pay all or part of the child’s daycare or school tuition?
- Have you paid other child-related expenses?
- Have you bought diapers or formula?
- Do you pay school fees?
- Have you purchased athletic equipment for your kids?
If you have an informal arrangement with your child’s other parent, maintain good records such as cancelled checks, receipts, and any other documentation that shows you have been consistently supporting your kids financially.
You also may want to consider whether or not you will request child support from the other parent if you are awarded full custody.
4. Keep Track of Visitations
Having an accurate record of your visitation schedule is an important part of trying to win child custody. Visitation records not only show how often you see your children under the current custody arrangements, but they also demonstrate your reliability and commitment to your kids.
You will be expected to demonstrate your involvement in your child’s life, so it is important to maintain your own records of your visitation schedule, parenting plan, and other ways you are involved in your child’s life.
One way to keep track of your visitations is to use a calendar or a child custody app. Look for apps that include a time and date stamp as these are considered reliable pieces of evidence in court and lend credibility to your argument.
5. Treat Your Co-Parent Respectfully
Court proceedings can be stressful, but it is important to show appropriate respect towards all involved, including the child’s other parent, the judge, and your child. Even if your child’s other parent is extremely challenging to co-parent with, do everything you can to be respectful. This includes speaking appropriately about them to your child.
The way you treat your child’s other parent may be a factor in determining child custody.
Being adversarial or rude to the other parent makes shared decision making more difficult, and is potentially damaging to parent-child relationships.
Because of this, judges are more likely to side with the parent who is not engaging in this behavior.
6. Keep the Kids Out of the Custody Fight
No matter what your child’s other parent says or does, don’t belittle your child’s mother in front of them. One important factor in virtually all custody decisions is which parent will support the child’s relationship with the other parent and whether either parent will obstruct or interfere with the child’s relationship with the other parent.
If the mother fails to comply with agreed-upon arrangements, gently remind her about your agreement. Try to set boundaries without elevating the issue to a full-blown argument. Remember: your goal is not to prevail in one or two minor skirmishes with your co-parent.
The court needs to see that you won’t undermine your children’s relationship with their mother if you are awarded custody.
7. Don’t Discuss Child Support in Conversations Concerning Custody
Don’t give anyone the opportunity to assume that your first priority in seeking custody of your child is lowering your child support obligation. Keep conversations about custody free from mentions of child support.
8. Don’t Get Discouraged – A Final Custody Order Is Not the End of the Story
Raising a child is a marathon, not a sprint. Just because you may have supervised visitation or limited parenting time right now doesn’t mean you should throw your hands up in defeat. If you keep being an excellent parent, following your court order, and effectively co-parenting, you will provide the family court everything it needs to be able to grant you more time with your child.
9. Contact a Family Law Attorney in California
It is difficult and expensive to “undo” mistakes in family court. It is always easier to prevent something from happening than undo something that is already a court order.
Ultimately, we hope to see deserving fathers granted joint custody of their children. Our custody attorneys and paternity attorneys have experience helping family law litigants obtain the best results for their children. Call the experienced family law attorneys at Talkov Law at (844) 4-TALKOV (825568) or contact us online for a free consultation about your case.
Our knowledgeable family law attorney,
Colleen Talkov, can also help if you have questions about any of the following:
Heart Balm Statute in California Partition ActionsWhat is the heart balm statute in California? A heart balm statute is a state law that prevents someone from suing their former romantic partner over a broken promise (or promises) that was to be met on the condition of marriage or during the course of the marriage. These statutes arose due to the common ... Read...
What is the heart balm statute in California?
A heart balm statute is a state law that prevents someone from suing their former romantic partner over a broken promise (or promises) that was to be met on the condition of marriage or during the course of the marriage. These statutes arose due to the common law tradition that allowed a heart balm action to recover damages against a former romantic partner over a broken promise related to becoming married. Most states have these heartbalm statutes to prevent unnecessary litigation surrounding damages from a break up alleging a promise to become married or benefits during the marriage.
Does California have a heart balm statute?
“A fraudulent promise to marry or to cohabit after marriage does not give rise to a cause of action for damages.” Civ. Code § 43.4. In fact: “No cause of action arises for: (a) Alienation of affection…. (c) Seduction of a person over the age of legal consent. (d) Breach of promise of marriage.” Civ. Code § 43.5. This anti-heart balm statute was enacted by California as a matter of public policy to prevent costly litigation stemming from a broken heart. “The California anti-heart-balm statutes, which long ago did away with breach of promise actions, establish a public policy against litigation of the affairs of the heart.” Askew v. Askew (1994) 22 Cal.App.4th 942, 947, as modified on denial of reh’g (Mar. 14, 1994). Furthermore, “Section 43.5 is designed to eliminate a class of lawsuits…which promoted fraud and perjury and encouraged marriages motivated by fear of a lawsuit instead of love.” Boyd v. Boyd (1964) 228 Cal. App. 2d 374, 377–78.
“Sometimes referred to as the ‘anti-heart-balm statute,’ section 43.5 ‘was enacted to eliminate a class of lawsuits which were often fruitful sources of fraud and extortion and easy methods to embarrass, harass, and besmirch the reputation of one wholly innocent of wrongdoing. The statute creates a blanket immunization from liability for the conduct it protects unless such conduct ‘breaches a duty of care independent of the causes of action barred therein.’” Richelle L. v. Roman Cath. Archbishop (2003) 106 Cal.App. 4th 257, 266–67, as modified (Mar. 17, 2003).
Partition actions involving the heart balm statute
It’s not uncommon for modern engaged couples to purchase a home together in anticipation of marriage. If the relationship goes south and they decide to break up, how will the home be split? Because the couple is not yet legally married, the family attorneys do not have jurisdiction to file an action in family court over the home as they would in a divorce.
Instead, the property can be equitably divided in civil court through a partition action. The seasoned partition attorneys at Talkov Law have seen ex-partners file meritless cross-complaints when faced with partition actions given that there are few defenses to a partition action. Among these cross-complaints can include attempts to collect damages based on a broken heart alone, but California’s anti-heart balm statute makes it so that heartbroken individual cannot sue their former romantic partner for damages. Simply promising to marry another is insufficient for receiving damages or partition offsets in a partition action or otherwise.
Contact an Experienced Partition Attorney in California
If you want to end your co-ownership relationship, but your co-owner won’t agree, a partition action is your only option. Our experienced partition lawyers have years of experience ending co-ownership disputes and can help you unlock the equity in your property. For a free, 15 minute consultation with an experienced partition attorney at Talkov Law, call (844) 4-TALKOV (825568) or fill out a contact form online.
