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Recent Posts in Child Custody Category
| June 03, 2010 |
| "PARENTAL ALIENATION" at the 2010 AFCC Conference |
| Posted By Thurman Arnold |
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The topic of the 47th Annual Association of Family and Conciliation Court Conference is "parental alienation." Over 1,000 lawyers, judges, mediators, and mental health professionals (psychologists, therapists, counselors, and court personnel) have converged in Denver for plenaries and dozens of educational and training sessions to share wisdom and views not just about alienating parents, but also concerning many other topics including mediating high conflict partner breakups, understanding how the brain works in conflict and why people behave irrationally and reactively, the effects of parental conflict upon children, children's best interests and parenting plans, domestic violence, and much more.
This is reportedly the largest AFCC Conference turn out ever.
The AFCC a is multi-disciplinary and highly collaborative organization, made up of members of overlapping professions who are passionately cross-pollinating the international social landscape - but particularly within the U.S. - in fertile ways. AFCC is dedicated to facilitating the healthy resolution of family conflict. AFCC's most important function is to serve as a forum for mental health professionals and family scientists and legal scholars to educate and train all of us who are in the day to day trenches of the legal and social struggles surrounding, and consequences of, relationship breakup. It is a natural marriage of a number of related professions, and probably the most important organization affecting family law trends today both in and outside the courtroom.
The concept of "parental alienation" is a highly controversial subject. There is much debate and disagreement nationally and in Denver this week whether parental alienation is really a "syndrome" or "disorder" and whether it deserves its own category in the upcoming DSM-V.
The DSM is short for the Diagnostic Statistical Manual of Mental Disorders. It is published is by the American Psychiatric Association. The current DSM-IV was first released in 1994 and has since been updated. It appears that the DSM-V may be released as early as 2012. It is the APA and not AFCC that determines what is and what is not included.
Mental Health Professionals (MHP's) use this manual when working with patients as a common ground for better understanding their illness and potential treatment, to communicate between themselves, and to help insurance companies and other payors decide whether to cover treatments. It is considered the ‘bible’ for any professional who makes psychiatric diagnoses in the United States and many other countries, and hence what gets in and what does not has long ranging consequences about how MHP's and judges and lawyers view certain behaviors and functioning. In effect it constitutes a consensus over what is and what is not a 'mental illness.'
The parental alienation question in this context is essentially whether there are predictable and discrete behaviors that in combination and given certain levels of intensity can form an identifiable mental illness that can be credibly diagnosed, distinguished from other disorders, and treated?
Hence, the DSM has important consequences to families who find themselves within the Family Court systems, even though that is not what the manual is necessarily intended to be used for.
For instance, in forensic parenting evaluations the DSM-IV may be used to label parents in ways that can seriously impact and impede their parenting rights. Therapists, psychologists, social workers and others who must employ and rely upon its system of coding often provide diagnoses and recommendations to judges and other MHP's derived from the DSM that are used to establish parenting rights and parenting plans in custody disputes and move-away situations.
I will attempt to Blog some information about current parental alienation research soon. In the meantime, consistent with my goal of providing free educational materials to individuals and families who are investigating legal questions involving families, my hope here is to introduce people to these important concepts. Given the nature of Blogs it is easiest to do this in 'layers.'
Thurman Arnold
http://www.ThurmanArnold.com
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| June 02, 2010 |
| Proposed Text for a new diagnosis of PARENTAL ALIENATION in the DSM-V |
| Posted By Thurman Arnold |
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The following text was taken from the AFCC materials provided in Denver. The DSM-V has not been adopted, nor is there any agreement that the following diagnosis should be added. I will provide commentary in a later Blog.
TWA
Proposed Text for Parental Alienation Disorder in DSM-V
DIAGNOSTIC FEATURES
The essential feature of parental alienation disorder is that a child - usually one whose parents are engaged in a high-conflict divorce - allies himself or herself strongly with one parent (the preferred parent) and rejects a relationship with the other parent (the alienated parent) without legitimate justification. The primary behavioral symptom is the child's resistance or refusal to have contact with the alienated parent (Criterion A).
The behaviors in the child that characterize parental alienation disorder include a persistent campaign of denigration against the alienated parent and weak, frivolous, and absurd rationalizations for the child's criticism of the alienated parent (Criterion B).
The following clinical features frequently occur in parental alienation disorder, especially when the child's symptoms reach a level that is moderate or severe (Criterion C). Lack of ambivalence refers to the child's belief that the alienated parent is all bad and the preferred parent is all good. The independent-thinker phenomenon means that the child proudly states the decision to reject the alienated parent is his own, not influenced by the preferred parent. Reflexive support of the preferred parent against the alienated parent refers to the pattern of the child's immediately and automatically taking the preferred parent's side in a disagreement. The child may exhibit a disregard for the feelings of the alienated parent and an absence of guilt over exploitation of the alienated parent. The child may manifest borrowed scenarios, that is, rehearsed statements that are identical to those made by the preferred parent. Also, the child's animosity toward the alienated parent may spread to that parent's extended family.
The diagnosis of parental alienation disorder should not be used if the child's refusal to have contact with the rejected parent is justifiable, for example, if the child was neglected or abused by that parent (Criterion D).
ASSOCIATED FEATURES
Parental alienation disorder may be mild, moderate, or severe. When the parental
alienation disorder is mild, the child may briefly resist contact with the alienated parent, but does have contact and enjoys a good relationship with the alienated parent once they are together.
When the parental alienation disorder is mild, the child may have a strong, healthy relationship with both parents, even though the child recites criticisms of the alienated parent.
When the parental alienation disorder is moderate, the child may persistently resist
contact with the alienated parent and will continue to complain and criticize the alienated parent during the contact. The child is likely to have a mildly to moderately pathological relationship with the preferred parent.
When the parental alienation disorder is severe, the child strongly and persistently resists contact and may hide or run away to avoid seeing the alienated parent. The child's behavior is driven by a firmly held, false belief that the alienated parent is evil, dangerous, or worthless. The child is likely to have a strong, severely pathological relationship with the preferred parent, perhaps sharing a paranoid worldview.
While the diagnosis of parental alienation disorder refers to the child, the preferred parent and other persons the child is dependent on may manifest the following attitudes and behaviors, which frequently are the major cause of the disorder: persistent criticisms of the rejected parent's personal qualities and parenting activities; statements that influence the child to fear, dislike, and criticize the alienated parent; and various maneuvers to exclude the rejected parent from the child's life. The behavior of the preferred parent may include complaints to the police and child protection agencies with allegations about the rejected parent.
Parental alienation
disorder may be the basis for false allegations of sexual abuse against the alienated parent. The preferred parent may be litigious to the point of abusing the legal system. The preferred parent may violate court orders that are not to his or her liking. Specific psychological problems - narcissistic personality disorder, borderline personality disorder, traumatic childhood experiences, and paranoid traits - may be identified in these individuals. Also, the rejected parent may manifest the following attitudes and behaviors, which may be a minor or contributory cause of the disorder: lack of warm, involved parenting; deficient parenting skills; and lack of time dedicated to parenting activities. However, the intensity and duration of the child's refusal to have contact with the rejected parent is far out of proportion to the relatively minor weaknesses in the rejected parent's parenting skills.
Although parental alienation disorder most often arises in the context of a child custody dispute between two parents, it can arise in other types of conflicts over child custody, such as a dispute between a parent and stepparent or between a parent and a grandparent. Sometimes, other family members - such as stepparents or grandparents - contribute to the creation of parental alienation disorder. On occasion, other individuals - such as therapists and child protection workers - contribute to the creation of parental alienation disorder by encouraging or supporting the child's refusal to have contact with the alienated parent. Also, parental alienation
disorder does not necessarily appear in the context of divorce litigation, but may occur in intact families or years following the divorce.
DIFFERENTIAL DIAGNOSIS
It is common for children to resist or avoid contact with the noncustodial parent after the parents separate or divorce. There are several possible explanations for a child's active rejection of contact. Parental alienation disorder is an important, but not the only, reason that children refuse contact.
In the course of normal development children will become polarized with one parent and then the other depending on the child's developmental stage and events in the child's life. When parents disagree, it is normal for children to experience loyalty conflicts. These transitory variationsin a child's relationship with his or her parents do not meet criteria for parental alienation
disorder because they do not constitute "a persistent rejection or denigration of a parent that reaches the level of a campaign."
If the child actually was abused, neglected, or disliked by the noncustodial parent or the current boyfriend or girlfriend of that parent, the child's animosity may be justified and it is understandable that the child would not want to visit the rejected parent's household. If abuse were the reason for the child's refusal, the diagnosis would be physical abuse of child or sexual
abuse of child, not parental alienation disorder. This is important to keep in mind because an abusive, rejected parent may misuse the concept of parental alienation disorder in order to falsely blame the child's refusal of contact on the parent that the child prefers. In shared psychotic disorder, a delusional parent may influence a child to believe that the other parent is an evil person who must be feared and avoided. In parental alienation disorder, the alienating parent may have very strong opinions about the alienated parent, but is not usually considered out of touch with reality.
When parents separate or divorce, a child with separation anxiety disorder may become even more worried and anxious about being away from the primary caretaker. In separation
anxiety disorder, the child is preoccupied with unrealistic fears that something will happen to the primary caretaker, while the child with parental alienation disorder is preoccupied with unrealistic beliefs that the alienated parent is dangerous.
It is conceivable that a child with specific phobia, situational type, might have an unreasonable fear of a parent or some aspect of the parent's household. A child with a specific phobia is unlikely to engage in a persistent campaign of denigration against the feared object, while the campaign of denigration is a central feature of parental alienation disorder.
When parents separate or divorce, a child with oppositional defiant disorder may become even more symptomatic - angry, resentful, stubborn - and not want to participate in the process of transitioning from one parent to the other. In oppositional defiant disorder, the child is likely to be oppositional with both parents in a variety of contexts, while the child with parental
alienation disorder is likely to focus his or her negativism on the proposed contact with the alienated parent and also to engage in the campaign of denigration of that parent.
When parents separate or divorce, a child may develop an adjustment disorder as a reaction to the various stressors related to the divorce including discord between the parents, the loss of a relationship with a parent, and the disruption of moving to a new neighborhood and school. A child with an adjustment disorder may have a variety of nonspecific symptoms including depression, anxious mood, and disruptive behaviors, while the child with parental
alienation disorder manifests a specific cluster of symptoms including the campaign of denigration and weak, frivolous rationalizations for the child's persistent criticism of the alienated parent.
Parent-child relational problem (a V-code) is the appropriate diagnosis if the focus of clinical attention is on the relationship between a child and his or her divorced parents, but the symptoms do not meet the criteria for a mental disorder. For example, a rebellious adolescent may not have a specific mental disorder, but may temporarily refuse to have contact with one parent even though both parents have encouraged him to do so and a court has ordered it. On the other hand, parental alienation disorder should be the diagnosis if the child's symptoms are persistent enough and severe enough to meet the criteria for that disorder.
DIAGNOSTIC CRITERIA FOR PARENTAL ALIENATION DISORDER
A. The child - usually one whose parents are engaged in a high-conflict divorce - allies himself or herself strongly with one parent and rejects a relationship with the other, alienated parent without legitimate justification. The child resists or refuses contact or parenting time with the alienated parent.
B. The child manifests the following behaviors:
- a persistent rejection or denigration of a parent that reaches the level of a
- campaign
- weak, frivolous, and absurd rationalizations for the child's persistent criticism of the rejected parent
C. The child manifests two or more of the following six attitudes and behaviors:
(1) lack of ambivalence
(2) independent-thinker phenomenon
(3) reflexive support of one parent against the other
(4) absence of guilt over exploitation of the rejected parent
(5) presence of borrowed scenarios
(6) spread of the animosity to the extended family of the rejected parent.
D. The duration of the disturbance is at least 2 months.
E. The disturbance causes clinically significant distress or impairment in social academic (occupational), or other important areas of functioning.
F. The child's refusal to have contact with the rejected parent is without legitimate justification. That is, parental alienation disorder is not diagnosed if the rejected parent maltreated the child.
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| May 12, 2010 |
| Is there any way to request that the Judge RECONSIDER her rulings in my case? |
| Posted By Thurman Arnold |
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Q. I was in Court three days ago and the Judge ordered me to pay an amount in support that there is no way I can afford. The Judge averaged my earnings over the past 12 months, and then entered that information into the Dissomaster. She then told me how much I had to pay for child and spousal support. The problem is that my hours were drastically cut back by my employer 10 days before the hearing and what I have been earning is not what I will be earning. I was so nervous in the courtroom I didn't explain this change to the Judge. Is there anything I can do to get the Judge to reconsider this order?
A. There are two important procedures that you can use to try to get a rehearing or a reconsideration of a court's award or decision, a motion for reconsideration and an application for CCP § 473 relief. Each is tricky and they do not succeed too often. I know of no statistics, but my guess is that court's will reconsider and reverse or modify their earlier decisions less than 10% of the time. 473 relief is more commonly granted.
The first is called a Motion for Reconsideration. The California statute governing reconsideration motions is California Code of Civil Procedure section 1008. It has at least two important parts: a) it must be timely filed and b) it must be based upon new or different facts,
circumstances, or law than what was known or shown at the time the hearing took place.
The threshold requirement is timing: § 1008(a) states that the motion must be filed "within 10 days after service upon the party of written notice of entry of the order." Courts consider that the failure to timely file a motion to reconsider is jurisdictional - which means they don't have the power to even consider your request if you are too late.
A literal reading of this statute suggests that the 10 day clock doesn't start ticking until you receive a hard copy of the court's order or ruling (typically through the mail or sometimes by personal service), but this is generally not how judges view it. Typically a judge announces their decision in open court. In the case of a Dissomaster or other support calculation they may print it out and give each party or the attorney for each party a copy. A minute order will be written by the court clerk, and placed in the file. It usually goes out in the mail to both sides the same day.
Sometimes a party or attorney will be directed by the Court to prepare a formal order. That formal order is usually on a Judicial Council form. The losing side is customarily asked to review and approve it before it is submitted to the judge for signature, except that many courts do not require an attorney to get the approval of an unrepresented party first and so it may wind up just being prepared and approved by the drafting attorney alone. Once the order after hearing gets signed by the court, it is supposed to be served upon the other party but often through sloppy practices or oversight it is not.
What this means is that you cannot rely on written notice as triggering your obligation to get the reconsideration motion filed - and you definitely cannot sit back and think that your time is not running just because no written order has been received by you.
Where the Judge makes their ruling while you are present in court, in my experience, most courts start the time running from the date of hearing regardless whether written notice or a formal written order is to follow. An exception is where a judge takes the matter "under submission" and makes her decision later, when a decision or ruling is mailed.
Many judges believe you have been "served" with the decision when you hear it - and therefore that your time to file a motion for reconsideration begins to run from that moment. This means that the only safe practice is to file your reconsideration motion no later than 10 calendar days after the hearing (not counting the first day, and if the 10th day falls on a weekend or holiday, your time is extended to the next calendar day).
10 days is not a lot of time to put a Motion for Reconsideration together. It needs to include a Notice of Motion form, an application form which includes your detailed declaration, and it is a good idea to provide legal authorities.
Assuming you meet the deadline you will find that Judges don't like to be asked to reconsider their decisions except for really good reason, and do not appreciate parties that simply are unhappy with the outcome and want to take another shot at it. They apply the technical rules technically to avoid changing their rulings, which makes some sense in terms of court efficiency because in litigation one side is almost always unhappy with the outcome and would like to reargue the matter.
The second half of a motion for reconsideration requires you establish that you have discovered "new or different facts or law." The "new law" situation is rare and does not mean that you just discovered that you quoted the wrong legal authorities to the Court and so now have "new" ones to present; it is intended to cover situations where the law changes or is clarified by statute or case decision in a way that would caused the Court to make a different decision.
Another important ground for reconsideration motions is the Court's inherent power "to do equity" or correct its own mistakes.
These motions are complicated and this Blog is just to give you some familiarity with them. These are the points I want to leave you with at the moment:
- If you can, try to research CCP § 1008, including looking at some legal treatise or the reported appellate decisions that mention it
- New or different facts don't generally include things you forgot to mention, unless you have some really credible explanation of why you forgot
- You must explain to the Court what you learned, how and when you learned it, why you didn't learn it earlier, and why these new or different facts matter enough that the Court should render a different outcome. If the other party withheld facts that you became aware of only after the hearing, you need to describe your reasonable diligence in having attempted to first get all the facts
- New facts are not the same as different facts. Be specific
- Telling the judge you just think she was wrong is rarely helpful - judges know they will be wrong some of the time, and they are trained as much to just make a decision as to get it right (clearly they want to get it right). Most of us don't like being told we are wrong and that is rarely a useful persuasive tool. Instead, focus on the justice or injustice of the situation and be humble
- Explaining that you made a mistake without more is also risky, because lawyers and parties do make mistakes in presenting their cases but the law favors finality in decision-making. Your mistake needs to have been a reasonable one.
- Always consider combining your reconsideration request with a request for relief under Code of Civil Procedure § 473, which is a very important statute that covers relief from orders or judgments that result from your inadvertence, surprise, mistake, or reasonable neglect
In your situation the question will be: If you knew 10 days before the hearing that your time had been cut back, why didn't you mention it? If you did mention it, then the Court considered your evidence and ruled against you, so this would not be new information.
Also, how different would the outcome have been if the Court had considered or known of the cut backs in your work? For instance, if those cut backs are partial and your income is 15% less than the Court supposed, this may not seem so important to the Judge that she thinks she needs to correct the unfairness of the result. If it is 40% less, she might. There are no hard and fast rules that can be applied with consistency.
It is quite common for clients to wind up hiring attorneys after they attempted to handle their case on their own, and it blew up at the hearing, and now they need desperately to get more or better information in front of the judge. It is very difficult to "unring the bell."
When these things happen they are a good lesson of why the adversarial court process is to be avoided whenever possible, and of the importance of finding and listening to a competent lawyer early on in your case.
Thurman W. Arnold
http://www.ThurmanArnold.com
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| May 10, 2010 |
| What does it mean that a judge has ordered a 730 EVALUATION in my custody case? |
| Posted By Thurman Arnold |
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Q. My ex wife and I are fighting over custody of our three children. The judge decided to appoint a psychologist to interview us all. How does this affect me and my case?
A. In high conflict cases where two sides have entrenched and opposing views about what is in the best interests of their children in terms of custody and visitation, California Evidence Code section 730 provides judges the option of appointing an expert witness to investigate the matter and report to the Court. This is often referred to as a forensic evaluation but in California we typically call them "730 evaluations."
What this means for you is that your family is likely in trouble, since these custody evals only are necessary where parents are failing to proactively resolve their parenting issues. They can be quite expensive in every way. I describe the process here in part to help encourage you avoid it. Still, there are times when it can lead to a lessening of conflict and it may be inevitable in move away situations.
Forensic evaluations can be used in a number of other settings as well, including valuing businesses or real estate. It is extremely common in move away cases and in fact a strong argument can be made that to allow a parent to relocate with minor children in the absence of such a report (if it is requested) violates the due process rights of the non-moving parent [In re Marriage of McGinnis (1992) 7 Cal.App.4th 473, 9 Cal.Rptr. 2d 182].
In your situation the Court has likely appointed a Psychologist or Marriage and Family Therapist whose work is already known to the Court because that person is on a panel the Court uses, or possibly because one or both lawyers have worked with the expert and either recommended him or her to the Court. Often the parties' lawyers will agree upon this third person.
Reliable evaluators are not hired guns for either side. However, like everyone else they can have their own biases. To the extent that you can, it is always a good idea to get as much information as possible about a potential evaluator before a selection is made. Courts generally don't impose someone on the parties where one of them objects to that person, but in smaller communities there may be fewer options in terms of qualified evaluators.
It can be very difficult for a judge to determine the truth of claims between family law litigants, what their underlying motives are, whether there is some mental health or substance abuse undercurrent, and whether one parent is more likely than the other to foster an ongoing relationship between the other parent and their children. Courts don't have the time or resources to do much more than call balls and strikes based upon witness declarations or live testimony. Therapists and psychologists are able to spend time interviewing parents and sometimes have them complete psychological testing, they meet children, talk to teachers, visiting homes, check with therapists who are seeing family members, and also interview significant others, new spouses, and other children in blended families. A much more reliable picture may emerge than that which comes from the parties' own descriptions of themselves, their children, and the other parent.
These custody evaluations can be quite expensive, typically starting at about $2,500. They seem to average between $4,000 and $6,000, but the costs skyrocket with the number of people other than the parents themselves (often called 'collaterols') whose input is required.
It typically takes at least three months for an expert psychologist or MFT to complete all the necessary interviews and write a detailed report. In my experience the time frame is closer to four months. This report is then submitted to the attorneys and to the Court.
Most courts require this report to be submitted at least 10 days prior to a hearing, so that both sides have ample time to review it. If you are involved in a custody dispute and you or your attorney receive the report late, if you disagree with its recommendations you may want to object that you have not had sufficient time if you want a continuance; otherwise, the Court may adopt the recommendations at that hearing.
In almost all cases where a 730 report has been completed, either side may request that an evidentiary hearing take place with live testimony and the ability to examine and cross-examine witnesses - including the custody evaluator whose recommendations are being considered. Depending upon the urgency of the family's issues and the Court's availability, these hearings may not be set for weeks or months.
In addition, if you feel that the evaluator failed to adequately investigate the case, or did not meet the standards of practice for such evaluations, you may want to consider hiring your own Evidence Code § 733 expert to advise you or your attorney on how to point out the shortcomings to the Court. This can be an expensive, but sometimes useful, way to challenge findings that you do not agree with. The usefulness of 733 evaluators is limited by the fact they do not get to perform a second evaluation (for instance, they rarely meet with the other party), and without conducting full interviews with all relevant persons they may be ethically bound not to render an opinion and certainly their views won't carry the same weight with a judge as the full evaluator. This is not to imply, however, that your children's interests are even your own interests are served by attacking an evaluator's report just because you don't like portions of it.
I will write more on this topic but want to leave you with this thought: Contested custody cases will damage your children, guaranteed. I urge you to consider mediating your custody differences instead, either by using a qualified mediator or a mental health professional.
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| April 14, 2010 |
| How Do I Get the Court to Order My Husband to be HAIR FOLLICLE tested? |
| Posted By Thurman Arnold |
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Q. I know my ex-husband uses drugs and I fear for the safety of our children. We are having a custody dispute. Is it possible to have him give a hair follicle sample for drug testing? How do i get a court order for drug testing?
A. It is not possible in California to force another parent or custodian of minor children to take a hair follicle test for drugs or alcohol absent their agreement to do so.
Family Code section 3041.5 is the direct authority for a court's ability to order drug testing. However, it contains an important limitation: If substance abuse testing is ordered by the court, the testing shall be performed in conformance with procedures and standards established by the United States Department of Health and Human Services for drug testing of federal employees. These procedures and standards do not presently include hair follicle testing and so a Court cannot order it over a party's objection. As a practical matter, California Family Courts order urine testing. The effectiveness of urine testing is limited because traces of different substances remain in body for differing amounts of time - traces of drugs remain in hair much longer.
However, hair follicle testing will be ordered where both parties agree or stipulate to it. This is more common that you might expect.
Sometimes this occurs at a court hearing where the Judge turns to each party and says something like 'Mr. Jones, would you be willing to take a hair follicle test: More often the attorney for the accusing party will say something like "your Honor, we are hoping that Mr. Jones will take a hair follicle test so we can put this issue to rest." The Court will turn to Mr. Jones and ask him if he will agree. 7 times out of 10, in my experience, Mr. Jones will say "sure your Honor, I have nothing to hide and she is making this all up."
Why would Mr. Jones agree to do this, when the Court otherwise is powerless to order it? Mr. Jones may not know his legal rights. Mr. Jones may have read on the internet that he can mask his substance abuse and beat the drug testing by using products he can buy on the web or at a health food store. Mr. Jones may have friends who said they beat the test. Mr. Jones may just feel like if he doesn't agree, he looks guilty. Mr. Jones may have recently cut his hair short or shaved his head - which is a good reason to ask the Court order that Mr. Jones not visit a barber until the hair sample is taken (hair samples can be taken from various other body areas). Mr. Jones may be himself in denial and so might lie easily and from habit.
And, Mr. Jones may think that his hair sample will come back clean because he is not "using" or he used so long ago the drug test will be negative - and he may or may not be right on this point. Traces of drugs may remain in the hair for up to six months. Some Valium to help one sleep taken 3 months ago may be forgotten.
Its a really bad idea to agree to hair follicle testing unless you are absolutely convinced there could be no traces of drugs in your body.
If you use drugs or abuse alcohol, you need to tell your attorney the truth of your situation; most attorneys want to help you overcome that problem early on in a case by directing you to recovery resources and help. Custody disputes actually present an opportunity for people to deal with their addictions (the same ones that may have lead to the breakup).
I once had a client who insisted her husband was using cocaine regularly, but she claimed she never used it. In her declaration we set forth much evidence of his continued using in excruciating detail. He admitted to having had used in the past, but said he had stopped a few months before.
At our hearing the Court asked both parents if they would agree to take a hair follicle test. Having adamantly stated under penalty of perjury that she never used, my client agreed and I allowed her to because she had told me (in answer to repeated direct questions to her first) that she never used cocaine - even though the Court would not have otherwise ordered it.
To my amazement her drug test results came back "dirty" for cocaine, as did her husband's. He now appeared to have been truthful, and she obviously had lied under oath. When I asked what she was thinking her answer was "oh, I used it on my birthday three months ago and was sure that that one time would not show up." The facts turned out to be that she knew all about his drug use because she had used alongside him.
The family judge was really unhappy with her. Because she lied to the Court, she lost all advantage in the custody proceedings and the judge viewed her as untrustworthy from that day forward. And so did I. This also adversely affected the amount of child and spousal support she received. Her husband ended up looking like the good guy, although I suspect he continued to use. Hair follicle tests don't indicate the dates of use, but merely that someone used at some time during some period.
If you have been using drugs, don't agree to a hair follicle test unless you are prepared to be completely honest.
It is possible to get a confidential hair follicle test from an independent laboratory before you write a declaration or go to a hearing, and then present your clean test to the judge at that hearing. If you find the test is positive for drugs, you don't need to share it with the Court or anyone else. But in that situation an ethical attorney will not let you make false statements either. You don't need to volunteer certain evidence, but once you make a statement it better be true.
By the way, I will not tolerate lying by my clients in my family law practice. Ethical lawyers will not aid and abet a client in making false or misleading statements.
In my experience there is always a positive solution presented by bad facts when you are truthful. With drug abuse situations, one solution is a commitment to becoming clean and sober. Judges appreciate people telling the truth who are taking steps to overcome these sorts of challenges.
Thurman W. Arnold III
http://www.ThurmanArnold.com
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| April 14, 2010 |
| Will the Court DRUG TEST My Wife? |
| Posted By Thurman Arnold |
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Q. How do I get a Court Order for drug testing my wife? I know she is using and I fear she is a danger to our son.
A. Your argument for drug and alcohol testing of parents or others having custody or visitation with children is in California is found in Family Code section 3041.5. The statute is only five years old, and before it enactment the only practical way to get drug testing was by the other party's agreement.
It is possible to convince a family court that the other parent should be tested for drugs or alcohol where you present sufficient evidence that there "is the habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol by the parent, legal custodian, person seeking guardianship, or person seeking visitation in a guardianship." FC section 3041.5(a).
This evidence includes but is not limited to proof that the other person has been convicted in the past five years of the illegal use or possession of a controlled substance.
The other important statute you need to cite to the Court is Family Code section 3011(d), which speaks to the requirement in determining what custody and visitation is in the best interests of children courts must consider evidence of the habitual use of controlled substances (non-prescription or otherwise) or alcohol - but first you must submit "independent corroboration".
In my experience what often happens when drug allegations are made is that Family Judges prefer to get the parties to agree to drug testing and only order it when they will not (or when recommended by family court services or a mental health professional). If the parties will not agree, judges may order the testing as long as there is some corroboration that a potential drug issue exists. I am always amazed that people who are using (who are "dirty" as we say) will agree to test when they may not need to because there is insufficient independent proof of the use of drugs.
Please see my blog on hair follicle testing.
TWA
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| April 08, 2010 |
| I've heard that CHILDREN can state their PREFERENCE at 13.... |
| Posted By Thurman Arnold |
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Q. I've heard that children can state their preference at age 13, is this true?
A. Not as you pose the question. This is what Family Code section 3042 says:
"Wishes of child to be given due weight; Preclusion of calling of child as witness
(a) If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, the court shall consider and give due weight to the wishes of the child in making an order granting or modifying custody.
(b) ..., the court shall control the examination of the child witness so as to protect the best interests of the child. The court may preclude the calling of the child as a witness where the best interests of the child so dictate and may provide alternative means of obtaining information regarding the child's preferences."
The threshold question is always going to be whether the child is of a sufficient age and capacity to reason to form an intelligent preference and there is no bright line rule or specific age on the subject. One can make generalizations for instance that some children nearing the age of 12 or 13 or 14 have a sufficient capacity, but that is not automatically assumed. It depends on each child. You can imagine that the child's opinion of their own capacity to reason is not determinative, nor is your opinion. Children may be subject to conditions or "disorders" that affect the characterization.
Commonly where a preference must be expressed, it comes through the medium of a mediator, the child's therapist, or a forensic therapist or psychologist. Most judges are extremely reluctant to take testimony from a child, even in chambers, especially on routine matters like preferences (as opposed to situations where a child is alleged to be a victim of some form of abuse and so may need to be questioned). In Indio, the family court mediators will often meet with children upon request. There always remains a fear that one child or the other or both is actively coaching the child - another reason why child's preferences as expressed should be given "due weight."
So, my advice to you is this: Consider what you propose carefully. Try to work through it with the other parent. Attempt to understand the root causes of a child's stated preference, and whether they are independently reasonable - or even true, since of course your son loves you and may be reluctant to leave you at the end of the summer.
And, certainly, where objective facts exist that strongly argue for a change of custody, the child's preference may tip the scales in one direction or the other. |
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| April 08, 2010 |
| How do COURTS decide to award JOINT CUSTODY? |
| Posted By Thurman Arnold |
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Q. How do courts decide whether to award joint custody?
A. Family Code section 3010 provides that a mother and a father "are equally entitled to the custody of the child."
However, Family Code section 3020 sets forth the California legislative declaration that the chief concern of the State in with regard to custody issues is the "best interests" of the minor children. Lawyer's and judges refer to this as the "BIC" (best interests of child) standard. As a matter of public policy, BIC always trumps parental rights and interests; of course, BIC is a moving target. Family Code section 3011 sets forth a non-exhaustive list of factors that bear upon the BIC.
Section 3020 is an extremely important statute nonetheless, because it also expresses California public policy to (a) "assure the health, safety, and welfare of children" and (b) to "assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except where the contact would not be in best interest of the child, as provided in Section 3011."
Here it is important to comment that when a court makes a custody determination, it is required "upon the request of either party," to issue a statement of the decision explaining the factual and legal basis for its findings. Family Code section 3022.3.
So, the court must make a decision, when parents cannot agree, based upon the evidence of what is in the child's best interest. Along these lines, there are certain presumptions that also apply which will affect the outcome of the BIC determination. Examples include a history of domestic violence by either party (Family Code section 3044) or habitual drug or alcohol abuse (FC section 3011(d)). In those situations the Court must actually state why it granted joint custody to a parent who is guilty of abuse, or is a continuing substance abuser, and those reasons may be hard to find. |
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| March 06, 2010 |
| What does a VOLUNTARY DECLARATION OF PATERNITY (VDOP) do in California? |
| Posted By Thurman Arnold |
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Q. My ex girlfriend gave birth to our son three years ago. I was at the hospital with her, and signed a document they handed me that said I was the father. She and I were never married. We lived together for another year, but then split up. For six months, since I got a new girlfriend, the ex has refused to let me see our son. What can I do?
A. This is a common situation. We always know who the mother of a child is, but it isn't always certain who the father is. The law has developed ways of dealing with this, keeping in mind it is the policy of the state to try to find legal fathers for children so that they, and not the taxpayers, have the burden of supporting that child.
Under the law, when a woman gives birth to a child during a marriage there is a legal presumption that he is the biological father if certain conditions are met. There are a number of statutory ways of establishing parentage since there are a number of different situations where children are conceived and born. Here I only write about situations where there was no marriage.
Establishing you are the father is a precondition to establishing two very important things: Your right to share the custody and visitation of the child and your right to receive child support, or your obligation to pay it.
Family Code section 7611 establishes this presumption where
1) the man "and the child's natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated, ... or after a judgment of [legal] separation is entered by a court"; or
2) before the birth, he and the mother attempted to marry each other but where the marriage was for some reason invalid, if the child is born during the attempted marriage or within 300 days after it termination OR if the attempted marriage is invalid without a court order, the child is born within 300 days after the ending of cohabitation; or
3) After the birth, he and the mother marry or attempt to marry each other but the marriage could be declared or is declared invalid, where (a) with the father's consent is named on the birth certificate or (b) he is obligated to support the child under a written voluntary promise or under a court order; or
4) If the man receives the child into his home and openly holds him out as his natural child.
Since you don't mention a marriage or attempted marriage, only the fourth category may apply to you.
Family Code sections 7570 to 7577 govern the establishment of paternity by voluntary declaration. This is called a VDOP. It is really for establishing paternity between a child and unmarried persons.
Since 1995, hospitals in California have been required to have on hand this declaration and informational documents about establishing paternity by this method. Hospitals are required by law to "provide [these documents] to the natural mother and [to] attempt to provide, at the place of birth, to the man identified by the natural mother as the natural father...." Family Code section 7571(a). Family Code section 7572 sets forth what the informational materials of the legal effects of signing the VDOP, including the rights that a father may be assuming and those that he is giving up (like limitations on his ability to dispute parentage later). Hospitals are then required to submit these documents to the California State Department of Child Support Services [DCSS].
Family Code section 7573 provides that, with certain qualifications, once this VDOP has been submitted to DCSS, the VDOP "shall establish paternity of the child and shall have the same force and effect as a judgment for paternity issued by a court.... The voluntary declaration of paternity shall be recognized as a basis for the establishment of an order for child custody, visitation, or child support."
Family Code section 7574 sets forth the minimum requirements of what the VDOP must say to the father.
The VDOP may only be rescinded (reversed) by either parent by filing a recission form with DCSS within 60 days of its date of execution unless a court has already entered orders for support or custody based upon it. Family Code section 7575.
Nonetheless, if a challenge is made within certain time frames to the VDOP after the recission period is passed, Family Code section 7575(b)(1) may permit the Court to set the judgment it has created aside "if the court finds that the conclusions of all the experts based upon the results of genetic tests ... are that the man ... is not the father," UNLESS the court finds that denial of an action to set aside the VDOP is not in the best interest of the child. Take a look at subsection (b)(1) to get a sense of what those considerations include.
Family Code effectively sets a 2 year statute of limitations for filing a motion with a court to set aside the VDOP; otherwise it cannot be set aside. Genetic testing must prove the supposed father is in fact not the bio dad.
In your case the VDOP cannot be set aside since it was signed more than 2 years ago. Based upon it, you are the legal father. If you need the court's assistance to enjoy visitation rights with your son, you need to file and serve a Paternity action, attach the VDOP (which you can get from DCSS), and file a separation OSC or motion to have custody and visitation rights determined. The case then becomes much like any other custody dispute.
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| February 16, 2010 |
| OVERVIEW OF CUSTODY APPLICATIONS AND PROCEDURES in California |
| Posted By Thurman Arnold |
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There are numerous types of cases that may involve custody determinations between parents and even nonparents (although nonparents typically need to be joined into the action since they are not automatically parties to their own child's divorce, for instance). These commonly include divorce proceedings, legal separations, paternity actions, and domestic violence applications. Guardianships involve custody but they are not covered here.
California Courts have jurisdiction to issue initial temporary custody awards, permanent custody awards, and to modify existing orders after a final custody award has been entered.
Whenever custody is on the table, visitation is as well. Typically child support is also at issue, although in order for a court to consider any request the moving party (the party who filed first) sets "the menu" for what the court can consider and make decisions about. The responding party does not set the menu, and must file their own separate application for orders to bring in new matters. It is imperative that a moving party (the party making requests) check the correct boxes on the
FL-310 and the Notice of Motion or OSC cover sheet. The reason for this is to ensure the other party receives 'due process,' meaning that they have fair notice of what the hearing is about and a fair opportunity to respond and to provide all relevant information in opposition.
Otherwise, if only the custody boxes are checked then any given court may refuse to discuss finances. Different judges do it differently, but it is important for you to do it right.
As a practical matter, in order to file for custody orders some underlying action must be filed. This could include a DCSS or other governmental application although you cannot control when and if that is filed.
Once the underlying action is filed, or together with it, a parent seeking orders may file an Order to Show Cause or Notice of Motion. If you represent yourself, you can obtain complete forms packets from your local court clerk. That application must be accompanied by the
FL-310 which tells the Court what it is you want and why you want it.
While you can handwrite the evidence you want to give the court on the FL-310, this is not a good idea. Better to set your information forth on the attachments sheets. Even better to type it out and attach it.
If you are seeking child support (or spousal support) orders, you must also submit a current Income and Expense Declaration which is California Judicial Council form
which is
Form FL-150. It is important that answer all the questions on that form and provide back up so you don't get scolded by a judge or have to return to court another day.
These papers must all be served on the opposing party, in person if this is the first filing and they have not yet responded in the action (notice of ex parte applications can be given orally, but there must be a proper personal services thereafter).
Be sure that you serve all the papers you want the court to consider. Do not expect that you can show up in court with new matters and evidence and just hand them to the judge. Procedural due process requires the other side get everything in time to respond. In addition, many judges will just refuse to consider untimely pleadings or defectively served documents - although, if for reasons beyond you control this happens to you (something new happened) - request a continuance at your first hearing so the other party gets their time to respond.
I address the actual issues regarding temporary custody and ex parte applications, permanent custody, and modification of custody in another blog. I will link back when those articles are done.
In the meantime, use our search engine at the top of every page to locate what you need to know about your family case in an efficient manner.
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| December 20, 2009 |
| GRANDPARENT CUSTODY in California. |
| Posted By Thurman Arnold |
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Grandparent Custody and Visitation
There are a number of important aspects to nonparent custody and visitation which deals with the rights of people who are not biological or legal parents of children to assume day to day responsibility for them, or merely to be in their lives when legal parents object (often the son or daughter in law). This circumstance sometimes occurs within the context of grandparent custody/visitation, or step parent visitation rights. It also may include siblings, other relatives, and foster parents.
Family Code section 3040 creates an order of preference for custody of children which begins with custody to parents. This parental preference is a fundamental policy of California child custody law, and its application is limited only by the best interests of children where parental custody can be demonstrated to be detrimental to a child.
This public policy has unfortunate aspects. Some parents act as if children are property, and believe that they are the only qualified decision makers. Sometimes they cut off older family members from the kids. But many parents are not equipped for the parenting task, and our society treats parenting as if we are all born knowing how to parent well. Grandparents who have already been through the parenting experience tend to be wiser than young parents.
If custody should not be or is not granted to either parent, courts must next grant custody to the person or persons in whose home the child has been living in a "wholesome and stable" environment. 3040(b). If no such person is available then custody may be awareded to any other person deemed by the court to be "suitable and able" to provide adequate and proper care and guidance for the child.
California custody courts have and exercise the "widest discretion" to choose a parenting plan that is in the best interests of the child.
Rules for custody differ from those dealing with visitation. California rules relating to grandparent visitation, step parent visitation, or visitations by others are found beginning at Family Code section 3100(a). "In the discretion of the court, reasonable visitation rights may be granted to any other person having an interest in the welfare of the child." Family Code section 3101 addresses stepparents. Sections 3103 and 3104 deal with different grandparent visitation scenarios.
Nonparent custody is a different animal than nonparent visitation. I will separately FAQ visitation and link it to this page soon. In the meantime, the visitation statutes are found at 3100 et seq.
Grandparent Custody Statutes
The grandparent custody statute is found at California Family Code section 3041.
The rules to qualify for nonparent custody are, appropriately, very difficult to satisfy. I say "appropriately" because we need to be skeptical of the State, or of family outsiders, imposing their will and views upon us. At the same time, we need to listen to our tribal members, so to speak.
Family Code section 3041 is a powerful statute. It creates a presumption in favor of parents objecting to nonparent custody, which a grandparent, for instance, may only overcome by presenting to the Family Court "clear and convincing evidence" that "granting custody to a parent would be detrimental to the child and that granting custody to the nonparent is required to serve the best interest of the child."
"Clear and convincing" evidence means evidence 'so clear as to leave no substantial doubt' or evidence which is 'sufficiently strong to command the unhesitating assent of every reasonable mind'.
There is an extremely valuable limitation to the clear and convincing evidence standard in nonparent custody cases under this statute:
"'detriment to the child' includes the harm of removal from a stable placement of a child with a person who has assumed, on a day-to-day basis, the role of his or her parent, fulfilling both the child's physical needs and the child's psychological needs for care and affection, and who has assumed that role for a substantial period of time."
If a grandparent can prove that they are a person described above, then not only does the "clear and convincing" burden evaporate, but "this finding shall constitute a finding that the custody [with the nonparent] is in the best interest of the child and that parental custody would be detrimental to the child absent a showing by a preponderance of the evidence to the contrary."
Thus, in grandarent contests with parents over custody, they are going to lose unless the grandparent, over a substantial time period (defined by the age of the child), become a de facto parent. This often happens where children are left in the care of a grandparent for many months or more, while the custodial parent is away.
Protect your grandchildren!
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| August 18, 2009 |
| Can the primary physical custody parent MOVE AWAY to another city even though my children attended 4 schools in 5 years? |
| Posted By Thurman Arnold |
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Q. Can the primary physical custodian move away to another city even though my children attended 4 schools in 5 years?
In the first two hearings, the court ruled that the ex-wife who has a job in Riverside cannot move to Chicago on the basis that my children have been academically unstable. My daughter (13 years of age) in particular has been attending 4 different schools in 5 years and does not wish to be relocated with her mother. Until recently, she went to Chicago with my children for two weeks where she was interviewed for a job and got the offer.
The primary custodian cannot move away if you can convince the Riverside judge that the child/children will suffer a detriment from the move, which is independent of the interference with your custodial time share. Is any therapist, mediator, child appointed attorney, or evaluator looking at this case? A 13 year old child is old enough to express a meaningful preference under Family Code section 3042, and you need to get these wishes to the court. The court evidently is uncomfortable with the move. You need to ask one or all of these folks be appointed, and you need to ask that legal and physical custody be awarded to the two of you jointly, or solely to you in the alternative. Please see what I have written here as it may help guide you:
http://www.thurmanarnold.com/Practice-Areas/Relocation-and-Move-Away.aspx |
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| August 14, 2009 |
| How does my sister get CUSTODY of her GRANDSON? |
| Posted By Thurman Arnold |
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Q. My Neice has a 1yr old son. She is always gone on drugs and alcohol. Her mother is basically in control of the boy. She cares for him 24/7, takes him to doctors...my niece doesn't seem to care for him. I told my sister in law she needs to get custody of her grandchild ASAP. She is afraid if she calls they will take him away from her. He is in a loving home, has own room and all the care he needs. We would take him but I have 2 boys myself, no room. I know he would be in the "system" until she legally adopts him...what do we do?
Kathy.
Kathy:
There is only one choice in the absence of a pending paternity or other proceeding between the niece and the father: A guardianship proceeding. The niece's mother has no standing to file any other type of action; however, if another action is pending (again, a dissolution or a paternity action between the bio-parents, for instance) your sister can seek custody pursuant to Family Code section 3041, which deals with custody to nonparents such as grandparents, by applying to be joined into those proceedings. Your sister in that case would be presumed to be the more appropriate custodian of the boy IF she can establish a stable placement exists with her and that she has "assumed, on a day-to-day basis, the role of his ... parent, fulfilling both the child's physical needs and the child's psychological needs for care and affection, and who has assumed that role for a substantial period of time."
The last portion is critical. If the child's mother gets her act together, or pretends to, its a bit close whether a one year period will satisfy a judge (has the situation been the same since birth?). Also, I would want to know whether the child's mother lives in your sister's house or has just parked the child there. If the former, it will be tougher.
If your sister is in control now and the child is protected, she should consult an attorney immediately so that she makes the right moves in case the time comes for her to take action. Consulting a qualified custody lawyer for advice now is a smart move.
Please see this link to nonparent custody issues. Custody of grandchildren is a specialized family law practice area.
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| August 04, 2009 |
| My girlfriend is due to have a baby next month. I am not sure if it mine. What do I do? |
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Q. My girlfriend is having our baby in September, but I don't know if I am the dad. I really care about her but a friend told me that I need to be careful because if I go to the hospital with her, I have to pay support no matter what. Is this true? What is she files a paternity action?
Keith S.
Keith:
California law encourages hospitals to get a signed Voluntary Declaration of Paternity ("VDOP") from the male who appears to be a parent at a time when a mother gives birth. This is something that is presented to proud fathers at the time of a child's birth, along with information about legal obligations, and that they are asked to sign. There may be alot of guilt and confusion going on at this time. Hopefully there is simply pride.
The public policy is that the State wants to identify biological fathers early on, and to encourage them to step up to the plate both financially and in terms of providing emotional parenting to children. It is also assumed the male who shows up for the birth is most likely the bio dad, and that the parties know it. Obviously, it is not always true and sometimes a man does not turn out to be the actual father. Sometimes he believes he is, and sometimes he is told he is.
Children need their biological parents; this is critically important. Any bio parent who shirks his responsibility out of financial or emotional selfishness lacks integrity, and their decision has serious consequences on other lives that a true parent will recognize and regret one day, unless they are a sociopath or lack any conscience.
BUT the signing of a VDOP has serious important legal consequences. It is equivalent to a Judgment of Paternity, which may only be set aside for a limited time. While children deserve parents, whether a man that has sex with a mother before a child is born should be determined based only upon that, and their sense of moral responsibility, and therefore to be adjudged a responsible parent also raises integrity and fairness questions in favor of the alleged parent. While California law on this subject means well, and may statistically result in the proper outcome more times than not, in my view innocent men who turn out not to be biological parents have rights too. The law says so too, and the question becomes whether you or not you waive your rights to object in a timely fashion.
So, please understand, if you sign a voluntary declaration of paternity next month, you may be adjudicated the legal father of this child regardless whether you are the bio parent. That has privileges and it has burdens. You will have the privilege (assuming the mother does not challenge you before two years after the child's birth) of being a "legal parent" whatever the DNA turns out to be, including rights to custody, visitation, companionship, etc.. You will also have the legal financial burdens which I describe under my support obligations FAQ's. For a long, long time, and even possibly forever.
Family Code section 7573 establishes the effect of a VDOP. Section 7575 allows you to rescind that declaration but only if you do so within 60 days after birth of the child. Otherwise, after birth, you have a 2 year window to seek paternity
DNA testing and an order that you are not, in fact, the bio-dad. The court has discretion to find you are the de facto parent even if you are not bio-dad, however, so even if DNA is conclusive and you are not otherwise the father - absent another man ready, willing, and able to step up, you may find yourself stuck.
These are weighty matters. In my experience, and in most judge's experiences, woman know who the dad is. Still, there are many reasons why a mother might lie - even including trying to insure that some bad person is never adjudicated the dad. I would never judge your girlfriend and have no opinion on what your status truly is.
So, do what your heart tells you you are the dad, fine. But consider getting DNA testing immediately before you, or the child and you, form any attachments and that way there will never be any question - nor any need to hire me to dispute paternity!
Best of luck and, hopefully, congratulations!
TWA |
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| August 02, 2009 |
| Joint legal and sole physical custody Mom needs help. |
| Posted By Thurman Arnold |
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I am a mom in San Diego County. There are court orders out of El Cajon for joint legal custody and sole physical to me. The old orders said I could move anywhere within San Diego County. I just changed our son's school to north county San Diego. I want to remarry, and have been living with my fiance for 4 years. I believe the schools are better here. Now our son's father is trying to force me to keep our son in the old school south of here, or to take custody. He says the school our son was in is better. I would have to drive 70 miles for school drop off and pickup.
I have no money for attorney fees because my last lawyer had only a year's experience, and she upset the judge and now I am out $10,000. We have a hearing in 3 days. Please help.
Mellissa
Mellisa:
I am not sure whether you filed an Income and Expense Declaration before now but you might be prepared to submit one to the Court on the issue of attorney fees at this upcoming hearing:
Attorney Fees Question/Assuming There Are Any Further Hearings
While attorneys fees should be your second argument, assuming that any further hearings are set or you get the sense things are not going well, you do need to ask for an Order for the $5,000 in attorney fees – even if the issue was not raised in your moving papers, you are still entitled to make this request pursuant to Family Code [FC] section 2031(2)(b)(1) for the first time on Thursday. That section states ‘an order for fees may be made without notice in open court … at the time of the hearing.’ Court has 15 days to rule. If it states in will rule later, ask that both parties be ordered to submit FL-150 I and E statements within 7 days.
You are requesting attorney's fees because the issues involved are some of the most complex in this area of the law (parent relocation), and you are entitled to be on a parity with Mr. Tr xxx, who has been able to retain competent counsel.
Specifically, tell the Court your request is also made under authority of Alan T.S., Jr. (4/2/09) 172 Cal.App.4th 238 and In re Marriage of Keech (1999) 75 Cal.App.4th 860. Tell the Court that you are in pro per but do not want to be, but that obligation of supporting the child from this marriage plus the financial burden of your other handicapped child, makes it impossible for you to obtain legal representation without an order that Mr. Txxxx pay these fees.
Move-Away Situation 1)
Establish that the final, current order, is for joint legal and sole physical custody to you. Mr. Txxxx rights are for visitation only, but not custody, absent a modification of the current orders upon a showing by him of a material change of circumstances. Your move and the child’s new school is not presumptively, without more, a sufficient change of circumstances to warrant a change of custody even assuming he asked for it (I don’t know if he has).
2)
As the parent entitled to the day to day supervisory control of the child per FC section 3007 (defines sole custody), you had a presumptive right to relocate. This is the same right codified in FC section 7501. You have custody; dad has visitation rights. (Btw, his visitation rights are not being negatively impacted by the move, by his own admission, since his objection only involves relative school ratings).
3)
As to the joint legal custody label, this only grants each of you the rights under FC section 3003 (decisions regarding health, education and welfare) during your respective custody and visitation times. FC section 3083. It is does not obligate you and he to agree on schooling absent a court order saying you had to first, per 3083, and it must be specific and mention “schooling” (I assume this is not the case).
4) Even though you were not required to do it, you gave dad notice per FC section 3024 that you were moving north and changing the child’s schooling. F’s atty intimidated you into filing a motion for permission to make the move, when they probably were the one’s obligated to file a motion to restrain the change, and so you have acted in good faith. This is particularly true given the court order from (the ealier date) stating you can relocate anywhere within San Diego County.
5)
It is very important if their responsive declaration did not check the change of custody box, and if their paperwork only asks to restrict the change in schools – you need to be sure you are right about this before making the argument -- BUT if they are not seeking a modification of custody, then you have the right to move [7501] and change schools [3003/3083] and there should be no need for any further hearings and your application must be granted.
6)
Next, ONLY IF THEY’HE REQUESTED A CHANGE OF CUSTODY, then the next analysis is: That this is not a de facto joint parenting agreement. This not a Burgess footnote 12 case (which requires a “de novo” best interests of the child hearing only where there is true parenting agreement). Here the timeshare numbers become important – you want him as low as reasonably possible without sounding incredible. This is a straight Burgess situation, and therefore you have the presumptive right to move and you do not need to show that the your move was “necessary” or even in good faith, except with the added benefit to you that Burgess involved temporary orders and so the court had to do a best interest of the child analysis, while your case involves “permanent” orders and so that is not a ground for an evidentiary hearing (best interests was previously decided in your favor and the question will be not be reviewed again absent Dad showing a change of circumstances).
7) Changing schools is not an adequate CoC as recently held by the California Supreme Court in Brown and Yana (2006) 37 Cal..4th 947. There, like you, a parent with sole physical custody sought to move a much greater distance from the dad – Las Vegas. Dad’s objection was that the schools in LV were inferior. He wanted an evidentiary hearing before the move would be allowed, and he sought a change of custody to himself if Mom moved anyway. The trial court correctly refused to allow an evidentiary hearing because the Father had failed to allege sufficient facts showing a detriment to the child by simply claiming the relative merits of schools. Courts won’t step into that qualitative battle. Instead, F needs to show that you are attempting to frustrate contact, which clearly is not the case, or some other “detriment” in his responsive declaration. His failure to do so means he is not entitled to an evidentiary hearing.
8)
Since he is not entitled to an evidentiary hearing, even though a mediation is appropriate in the next month, it would be improper for this court to issue any orders that restrain your son’s ability to start school on 8/20/09 as planned.
9)
Father has failed to meet his burden. You need attorney fees to retain competent counsel for any further hearings.
10) Finally, under FC section 3044 there is a rebuttable presumption that dad is not a fit person to be a joint custodial parent because of the DV orders.
Best of luck on this. If you get a court order for attorney fees, hire someone!
Thurman Arnold
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