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Recent Posts in Custody Modifications Category
| 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 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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| 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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| 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 04, 2009 |
| My girlfriend is due to have a baby next month. I am not sure if it mine. What do I do? |
| Posted By |
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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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