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Recent Posts in Grandparent Rights Category
| November 16, 2011 |
| 2nd Appellate District Severely Limits GRANDPARENT VISITATION Under Family Code Section 3102 |
| Posted By Thurman Arnold, CFLS |
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Rich v. Thatcher (11/14/11), B228847
In what reads to me to be a myopic opinion, Justice Yegan of Division Six of the Second Appellate District has declared that biological grandparents have a burden to prove, by clear and convincing evidence, that denying them visitation pursuant to
Family Code section 3102 would be detrimental to a child before they can hope to win access to their children's children, when their own child dies. in the face of a "fit" parent's objection. Attaching a burden of proof by "clear and convincing" evidence is usually the kiss of death to any litigant who has that burden.
The appellate decision appears to combine a species of "bad facts make bad law" with a reluctance to discuss the underlying facts that were determined by the Ventura trial court to such an extent that we are left guessing (but possibly not) where the grandmother went wrong, since clearly she made an extremely bad impression on both courts. Hence, my critical feeling towards the decision may be due to sensing that some important information is being withheld from "we the readers" that deserved this draconian outcome, and also from a sense that both the trial court and the appellate are being reactive to undisclosed facts, and that as a consequence a brand new rule has been established in California that will impact many grandparents who are innocent of whatever transgression Ms. Rich may have committed.
And, more important from my perspective, this decision reflects a collision between what the mental health and family sciences believe about taking a generational and cooperative approach to parenting. At this level of the case apparently nobody weighed on behalf of either grandparents specifically, or the family sciences generally - no amicus curie briefs seem to have been sought. I really hope that this decision gets appealed to the California Supreme Court so that we can begin to look at the very important role that grandparents potentially play within families. Unfortunately, grandparents don't seem to have much of an organizational voice. It seems as if the AARP ought to be interested in these issues given their constitutency.
The decision tells us that Carol Rich is the grandmother and that Rochelle Thatcher is the surviving parent ("Thatcher" is a big name in Ventura, but I don't know if there is any relation). Carol's son and Rochelle never married, but they produced a son together in December, 2006. The father died in 2010 of a drug overdose and the decision tells us cryptically that he "left two suicide notes." Grandmother and mother did not "get along", and grandmother apparently accused mother of having something to do with her son's death. "Their hostility was open and clear."
All of this suggests that grandmother had a very hard time accepting her son's death, and that she felt that the mother was in some way responsible. If so, grandmother's position may have reasonably led a trial court to conclude that she would be a destabilizing and even poisonous influence on the minor, but if that is how the justices felt it would be nice if they had said so. Instead they have spanked all grandparents with one flat judicial palm.
Grandmother did get a lengthy hearing in June, 2010, where a number of witnesses were called. At the conclusion the trial court "expressed 'great concern over [grandmother's] veracity.'" It further found that while grandmother had established some relationship with the child, she failed to establish a "deep and abiding relationship." Instead, grandmother's relationship was instead limited to interactions with the grandchild when grandmother was serving to supervised visits ordered in the parties' Paternity case. Hence, it sounds as if this grandmother's relationship with her grandson existed, but that it historically had not been substantial. The child was 4 1/2 at the time of trial.
The trial court imposed a clear and convincing standard on grandmother to "rebut the presumption that Mother is acting in the best interest of [grandchild] in denying visitation to Grandmother at this time or that denial of visitation would be detrimental to [grandchild]." Nonetheless, the trial court continued that in any event "it would not be in [grandchild's] best interest to interject court-ordered visitation with Grandmother, particularly in light of the longstanding animosity between Mother and Grandmother."
Hence, this ruling is another cautionary tale for grandparents - if you so ally yourself with you own child against the person with whom they chose to produce a child, it will hurt you later. Grandparents do too often tend to become allied and enmeshed in their children's lives, and this is a real problem in support cases where parents are paying for their children while those children refuse or fail to become independent and so try to stick the other party with a financial burden - something we will likely see an importance case on soon. But I digress.
Justice Yegan, who clearly does not brook fools, strongly supports the lower trial courts when they make discretionary calls that are supported by the evidence. Quoting from his own earlier decision this year (see link above), he states in a footnote to this decision "[a]s
we indicated in
In re Marriage of Greenberg
(2011) 194 Cal.App.4th 1095) the trial court's comment on grandmother's veracity is tantamount to an "adverse factual finding." This is a poor platform upon which to predicate a successful appeal. (
Id.
, at p. 1099.)
That is the fact upon which this case really seems to turn. Justice Yegan continues in this decision:
"Grandmother contends that the trial court erred in applying the clear and convincing burden. We disagree with her and agree with the trial court's legal conclusion. We hold as follows: To overcome the presumption that a fit parent will act in the best interest of the grandchild, a grandparent has the burden of proof and must show, by clear and convincing evidence, that denial of visitation is not in the best interest of the grandchild, i.e., denial of visitation would be detrimental to the grandchild. The fair import of the word "detriment" is damage, harm, or loss. (See American Heritage Dict. (2d college ed. 1982) P. 388, col. 2.) If grandparent visitation is in the grandchild's 'best interest,' it is not 'detrimental.' If grandparent visitation is not in the grandchild's 'best interest,' it is 'detrimental.' [citations omitted].
Until today, no appellate court has expressly held that section 3102 requires clear and convincing evidence to overcome the presumption. 'There is some authority for the proposition that the same test which applies to a custody award to a nonparent should apply to a visitation award to a nonparent that is, that "judicially compelled visitation against the wishes of both parents" "must not be allowed unless it is clearly and convincingly shown that denial of visitation would be detrimental to the child." (
In re Marriage of Gayden
(1991) 229 Cal.App.3d 1510, 1517, 1520 ... [involving a motion for visitation by a biologically unrelated person under former Civil Code section 4601 (now
Fenn v. Sherriff
,
supra
, 109 Cal.App.4th at p. 1486; see also dictum in
In re Marriage of W.
,
supra
, 114 Cal.App.4th at p. 74 ['Where natural parents are unified in opposition, nonparental visitation can be ordered only if such visitation is in the best interest of the child
and
denial of visitation would be detrimental to the child'].)
'The degree of burden of proof applied in a particular situation is an expression of the degree of confidence society wishes to require of the resolution of a question of fact. (Citation).' [Citations omitted]. There is no question that a grandparent has an important interest in visiting with a grandchild. But the higher degree of the burden of proof that we adopt simply demonstrates that there is a preference in favor of the presumably correct choice of a fit sole surviving parent. Such choice is 'first.'
In formulating our holding, we are guided by and adopt the cogent analysis of Justice Chin in his concurring and dissenting opinion in
In re Marriage of Harris, supra,
34 Cal.4th at pp. 247-250; see also the concurring and dissenting opinion of Justice Brown at pages 251-253. To adequately protect a fit sole surviving parent's constitutional right to raise a child, a "mere preponderance" burden as to "best interest" is not sufficient. The "clear and convincing" burden, i.e. evidence "so clear as to leave no substantial doubt," promotes a parent's constitutionally protected "first" choice. The higher evidentiary burden preserves the constitutionality of section 3102 and insures against erroneous fact finding. (
Id.,
at p. 248.)
The clear and convincing burden is not insurmountable. We can certainly envision a case where a trial court could factually find and rule that grandparent visitation is appropriate over the objection of the fit sole surviving parent. This, however, is not such a case. The trial court did not credit grandmother's testimony.
Even if the trial court had erroneously applied too strict of a burden for grandmother, we
we would still affirm the order denying visitation based upon the trial court's alternative ruling. As indicated, we commend the trial court for its well-articulated order. First, it ruled that the "clear and convincing" burden was appropriate. This was a debatable issue which we now settle. But it was also prescient in articulating its alternate best interest ruling which is rooted in traditional family law principles. 'We may not reverse . . . simply because [in theory]
some
of the court's reasoning was faulty, so long as
any
of the stated reasons are sufficient to justify the order. [Citation.]' (
Kaldenbach v. Mutual of Omaha Life Ins. Co.
(2009) 178 Cal.App.4th 830, 844.)"
Note to reader - I've added some emphasis to this.
So, we now have a rule that is clearly intended to honor the constitutional issues addressed to some extent in the U.S. Supreme Court's Troxel decision. But the decision omits to discuss any of the legislative history of Family Code section 3102 as to whether the burden of proof that is associated with it is nearly as hard as what the decision makes it become. While "clear and convincing evidence" is not an "insurmountable burden," practically speaking any lawyer will tell you it almost is. Morever, while the decision admits that grandparents have important interests in visiting with grandchildren, it totally ignores the rights of children to know their families of origin. There is no mention that any lawyer was ever appointed for the minor in this case.
This decision should also be evaluated in light of a Fourth Appellate District decision issued less than a month ago. In Hoag v. Diedjomajor the Riverside based appellate district upheld a trial court order for visitation after a grandparent's child died. The burden of proof applied by the Court was not discussed, but was implicitly by a "preponderance of the evidence."
The outcome was the opposite than here, but in many ways it is entirely consistent with Justice Yegan's decision - and here is what is interesting for me: If a parent refuses visitation, even if they don't get along, to spite the grandparent, they lose. But if the grandparent seeks visitation after spiting the non-biological surviving parent, they lose.
And, I wonder, how can a "fit" parent (by definition) deny any access at all between their child and that child's grandparents, especially when the intergenerational parent is dead, except under the most outrageous of circumstances? Yet, having said that, I must confess that if a grandparent does behave outrageously, then their rights should be limited or nonexistent. Oy vey, possibly the record that we will never see discloses that such was the case here - but we must take it on faith, apparently, that it was. I don't see how we need to impose a burden of proof by clear and convincing evidence to ensure that bad grandparents are fenced in - I mean "fenced out".
Another question bothers me - the decision points out that there were nine other witnesses who testified at the trial beyond the grandmother in this case. Did these include the maternal grandparents, who possibly were more favorably received? So often these types of litigation wars can only be funded by older people who have accumulated some wealth. Often these family battles include or are really between parents' parents. I notice that the mother in this case appears to have had premiere local counsel, and that must not have been cheap. The paternal grandmother will foot some of their bill in this case since costs were assessed against her.
But then, of course, other losers as a result of this decision are the grandchildren of grandparents who can behave themselves who may be affected by this new burden of proof. IMHO. But you may disagree - please feel free to comment if you do!
Thurman W. Arnold, C.F.L.S. |
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| October 31, 2011 |
| GRANDPARENT RIGHTS: Recent RIVERSIDE Case Orders VISITATION To GP After DEATH OF PARENT |
| Posted By Thurman Arnold, CFLS |
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Hoag v. Diedjomahor (October 17, 2011), E050935
The Facts
The Fourth Appellate Division released a published opinion on October 17, 2011 in the case of
Hoag v. Diedjomahor, a case which was decided by recently retired
Commissioner Michael McCoy in
Indio, California, involving grandparent visitation rights upon the death of a parent per
Family Code section 3102. Commissioner McCoy's ruling in favor of the grandmother was upheld on appeal. Interestingly, the grandmother did not participate in the appellate level proceedings but nonetheless succeeded. Overturning a well reasoned trial court decision, where an abuse of discretion must first be shown, is always a difficult proposition.
Melville Diedjomahor (the father) and Kristen Hoag (the mother) were married in 2005. They lived with Kristen's mother, Shannon Hoag (the grandmother) in an apartment in La Habra. Kristen gave birth to their first daughter in 2006. Thereafter the parties separated. Melville moved to Desert Hot Springs, California, while Kristen and the minor remained with the maternal grandmother. Then the parties reconciled, and the family - including Shannon Hoag - moved into a residence together in DHS. In 2008 a second daughter was born.
Kristen filed for divorce in Indio in February, 2009. A month later she died unexpectedly as a result of previously undiagnosed epilepsy. Immediately following the death the children remained with the grandmother, and the father would come visit every few days.
Several months later the grandmother told the father she intended to file a guardianship proceeding. In reaction thereto, Melville demanded that she turn the children over to him. The proceeding was filed, alleging that the father was unfit because of injuries and also because he was in the country illegally and subject to deportation. Communications between the two rapidly deteriorated such that - according to grandma, he refused to give her any further visitation except that which was court-ordered; the father denied imposing this limitation to the trial court. In any event the GM was denied access to the children for some weeks after she filed her guardianship petition, until Commissioner McCoy entered visitation orders some three weeks later.
To complicate matters, grandmother was living together with Kristen's uncle, where the children and Kristen had also stayed for a time before her death, and - as we so regularly see if high conflict family law cases - father alleged that the uncle had improperly touched his niece, Kristen, years before when she was a minor. In 1993 grandmother's children had been removed from her custody because she had been using drugs. For these reasons grandmother should not have extended visitations, he argued.
Nonetheless, grandmother received visitation with the minors pending a trial. The guardianship proceedings were dismissed and continued within the family law action that Kristen had initiated. This visitation gave the grandmother three hours every Wednesday and 48 hours every other weekend, and she was allowed a daily phone call. This became her proposal for the final visitation order. It was based upon the mediator's recommendations.
Melville claimed at trial that he would permit grandmother to visit, but objected to any orders issuing for same and instead insisted it should be left to his discretion for day to day and moment to moment. He contended that overnights were not safe because the children might be exposed to the uncle (by this time the grandmother had moved into an apartment by herself, in the same complex as dad), that he wanted to study the kids on Wednesday, and he objected to daily calls because they interrupted what he was doing. He explained that once grandmother had filed court proceedings she had breached any trust that had previously existed between them. Hence, his final non-court order proposal was eight hours every other Saturday and one week during the summer with no sleep overs, and eight hours on grandmother's birthday.
Ultimately Commissioner McCoy found that while the father was in fact a fit parent, but that he had opposed grandmother's requests for what was in fact a reasonable visitation schedule. The Court specifically found that the father's testimony that he would allow non-court ordered visitation to occur to not be credible, and the trial court also dismissed the allegations regarding the uncle and the grandmother's past conduct (although noting that Commissioner McCoy had prohibited such contact in any event). It found that visitation was in the children's best interest, particularly so given the the years that grandmother had acted as a third parent for the children and the parties before the divorce was filed. Essentially, the trial Court ruled that a parent does not have unfettered discretion to impose visitation conditions at their whim where grandparents have played such an important historic role for children.
The Law Concerning Grandparent Visitation
This decision does an excellent job in reviewing and cleaning up California decisions about grandparent visitation in the wake of
Troxel v. Granville (2000) 530 U.S. 57, decided by the United States Supreme Court almost twelve years ago. Like
Troxel,
this case involves a grandparent, whose adult child has died, seeking visitation with that child's minor children over the objection of their surviving parent. As noted by Justice Richli, who wrote the opinion for our local Riverside County based appellate division, Troxel commands the courts to presume that the surviving parent's objection to grandparent visitation is in the best interest of the children. "However, this does not mean that the surviving parent is free to use the denial of visitation as Big Bertha in his or her personal war with the grandparent." Here, the trial court found that the surviving parent's claimed reasons for objecting to visitation were not reasonable and not credible; in essence, as he practically admitted on the stand, he objected to visitation mainly
to spite the grandparent. Moreover, he admitted that grandparent visitation would be in the best interest of the children. Thus, the presumption that he was acting in the best interest of his children was overcome, and the trial court constitutionally could and did grant the grandparent's visitation petition.
The trial court understood the law to be that it could constitutionally apply section 3102, including its best-interest test, provided the father was either (1) unfit, or (2) "opposed to occasional visitation." It expressly found that he was a fit parent. It concluded that "the issue really turns on whether dad is opposed to occasional visitation. If he is, then the court then addresses what visitation, if any, is in the children's best interest." It found that the father was "opposed [to] any . . . reasonable visitation involving the children and grandma." Thus, it proceeded to apply a standard best-interest test.
The father challenged this reasoning by arguing that the trial court erred by finding that he was opposed to meaningful visitation. Second, even assuming that he was opposed to meaningful visitation, he was still entitled to a presumption that his decision was in the best interest of the children.
The justices in this case stated:
"In Troxel, the surviving parent's willingness to allow visitation was just one of a number of factors that the Supreme Court took into account. Thus, the significance of this single factor, standing alone, is not at all clear. We have no way of knowing what the outcome would have been if the surviving parent had
not been willing to offer meaningful visitation.
On one hand, the Troxel plurality cited, with approval, various state statutes allowing courts to award visitation to a nonparent when a parent has denied visitation; it evidently viewed these as constitutional. (
Troxel,
supra, 530 U.S. at pp. 71-72 [plur. opn.].) On the other hand, it adopted a broad 'presumption that fit parents act in the best interests of their children.' (
Id. at p. 68.) It would seem that this should apply not only to a decision to limit visitation, but also to a decision to deny visitation entirely.
In fact, Troxel's discussion of willingness to allow visitation puts the parent in a 'damned if you do, damned if you don't' position. If the parent voluntarily allows some visitation, that could be viewed as a concession that visitation is in the best interest of the child. Certainly it is a decision regarding the child's best interest, to which the court must {Slip Opn. Page 15} accord 'special weight.' If, however, the parent refuses to allow
any visitation voluntarily, that, too, weighs in
favor of court-ordered visitation. What is a parent who genuinely believes that visitation would be detrimental supposed to do?
Because this issue is fraught with difficulty, we choose to assume - solely for the sake of argument - that the trial court erred by ruling that it was free to apply a best-interest test solely because the father was not willing to offer meaningful visitation voluntarily. This would mean that it was still required to presume that the father's visitation determination was in the best interest of the children and to accord special weight to that determination.
The trial court's other findings, however, show that, even if it had applied this standard, it would still have allowed visitation. Most crucially, it found that the father's claimed reasons for objecting to visitation were not reasonable and not credible. This left, as his real reason, a desire to retaliate against the grandmother for her attempt to take the children away from him. Indeed, he testified that he was contesting visitation because she had breached his trust by trying to take the children away from him, and she had been 'disrespectful' to him. We hasten to add that this is a completely understandable reaction. Nevertheless, it is not based on the best interest of the children. To the contrary,
it punishes the children for the sins of the grandmother. [Emphasis added].
Moreover, in closing argument, the father's counsel conceded that visitation with the grandmother would be in the best interest of the children. He merely argued that
court-ordered visitation would be detrimental. Thus, the trial court did not simply disagree with the father concerning the best interest of his children. Moreover, it did not fail to give sufficient weight to his determination of their best interest. Rather, based on its findings (and his concession), the presumption that his visitation determinations were in the best interest of the children was thoroughly overcome.
Evidently the father's counsel was trying to achieve the same outcome as in Kyle O. The father there, too, admitted that visitation with the grandparents was in his daughter's best interest and claimed that he would allow visitation voluntarily. He testified, however, that
court-ordered visitation was detrimental because it increased the hostility between him and the grandparents. (
Kyle O. v. Donald R.,
supra, 85 Cal.App.4th at pp. 858-859, 863-864.) He also introduced evidence that court-ordered visitation had interfered with the child's opportunities to spend time with him and her paternal relatives and that it conflicted with her other activities. (
Id. at pp. 857-858.) The appellate court concluded that "his preference for a less structured and more normal and spontaneous manner of visitation must be given deference." (
Id. at p. 863.)
Kyle O. is distinguishable, however, because here, the father (and his counsel) never really explained
why he objected to court-ordered visitation, even though he was supposedly willing to allow visitation voluntarily. When asked, he simply raised objections to the existing temporary visitation
schedule. For example, he claimed that the Wednesday evening visit prevented him from "study[ing]" with the children.
This was not an objection to court-ordered visitation.
In this appeal, the father claims that it was reasonable for him to be opposed to court-ordered visitation, as opposed to voluntary visitation, because the grandmother had 'a pattern of hostility' toward him. He argues that, unlike voluntary visitation, court-ordered visitation would give her a stick to beat him with - any time he violated an order, she would undoubtedly seek sanctions against him.
The problem with this argument is that the father himself never testified, at trial, that this was
why he opposed court-ordered visitation. Thus, the trial court did not have to accept this theory.
The father also argues that the trial court erred by dismissing his concerns about whether the children would be safe with the grandmother. The trial court, however, specifically found that these concerns were neither reasonable nor credible. Substantial evidence supports this finding. The supposed molestation was remote; it had occurred when the uncle was about 12 and mother was about 5. It was described as 'improper[] touch[ing];' the grandmother characterized it as 'playing doctor.' The children had stayed at the uncle's house for over a month without being molested. In any event, by the time of trial, the grandmother was no longer living with the uncle. The trial court could and did order that the children not be left alone with him.
The grandmother's drug use was similarly remote. Her loss of custody, although due, in part, to her use of drugs, had been only temporary. It did not appear that she had ever used drugs again. Last, but not least, again, the father admitted that visitation was in the best interest of the children and claimed that he was willing to allow visitation voluntarily.
Next, the father argues that the trial court erroneously placed the burden on him to prove that his objections to visitation were in the best interest of the children. Not so. He does not cite any portion of the record to support his claim, and we have found none.
Finally, the father argues that even if the trial court did not err by allowing some visitation, it erred by adopting a more extensive visitation schedule than he was willing to offer. He does not support this argument, however, with any analysis or citation of authority. Accordingly, we deem it forfeited....
We do not mean to suggest that, if not forfeited, it would have merit. The trial court found that the father's objections to visitation did not arise out of a genuine concern for the best interest of the children. Thus, the constitutionally established presumption that he was acting in the best interest of the children was overcome. This not only allowed but affirmatively required the trial court to determine what visitation schedule was in the best interest of the children.
* * *
The father argues that ... the trial court could not order visitation unless and until he had been given an opportunity to negotiate visitation voluntarily.
He had such an opportunity, however, in the course of the guardianship, as well as in this action. He even participated in mediation (which regrettably produced no agreement). According to the father, however, a grandparent must ask the surviving parent for a voluntary visitation arrangement before the grandparent can even file a visitation petition with the court. Thus, in his view, the fact that he had an opportunity to negotiate a voluntary visitation arrangement after this proceeding had already been filed is irrelevant. We find no authority for this in Troxel or
Punsly. Indeed,
Punsly is, if anything, to the contrary. It understood
Troxel to mean that "the parent must be given an opportunity to voluntarily negotiate a visitation plan," but it added that it was "irrelevant" when or why the parent did so. (
Punsly v. Ho,
supra, 87 Cal.App.4th at p. 1108.) Moreover, it held that, in the case before it, this requirement had been satisfied by the parent's agreement 'to voluntarily arrange visitation . . .
both before and after the [
grandparents]
petitioned the court for visitation.' (
Ibid., italics added.)
The father argues that it would be good public policy to make a request for voluntary visitation a precondition to filing a visitation petition. Even if so, this is an argument that must be made, if at all, to the Legislature. Section 3102 contains no such requirement, and the federal Constitution, as construed in Troxel, does not impose one."
Comments
Commissioner McCoy did an outstanding job, as he always did, in making a thorough and well-reasoned decision based upon the evidence. To resist visitation by a grandparent who has a close and substantial relationship with grandchildren, there needs to be real evidence in the record that the children's best interests in continuing, stable relationships with these third party nonparents, are not being ignored simply out of spite.
This case is a must read for all grandparents, or custodial parents, faced with a grandparent or other request for visitation rights by a non-parent. I will upload the opinion itself in a few weeks. It gives rich fodder for how to structure arguments on both sides in these often acrimonious, but always unfortunate, disputes.
However, as it turns out, this decision is not the final answer on the matter. I will discuss the more recent case of Rich v. Thatcher, out of Ventura County, shortly. But, this is not the Ventura "Thatchers", is it?
Please note that this decision is based upon Family Code section 3102, which only applies where one parent has died. The other grandparent visitation statutes are Family Code section 3103 and
FC section 3104. I would suspect, however, that this case will nonetheless generalize, to an extent that remains to be seen, to grandparent visitation where both parents are still living.
Thurman Arnold, III, CFLS
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| December 14, 2010 |
| 2011 REVISIONS to the California Family Code: Child Abuse and Temporary Orders |
| Posted By Thurman Arnold, CFLS |
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Effective January 1, 2011, Family Code section 3027 has been amended to authorize courts to "take any reasonable, temporary steps as the court, in its discretion, deems appropriate ... to protect the child's safety until an investigation has been completed" when allegations of child abuse have been made.
Previously this section only applied to allegations of "sexual abuse."
This will include allegations made by so-called "mandatory reporters," although the statute speaks only to child custody proceedings that are already pending. Presumably the innocent parent will file something at once and seek no-visitation orders based upon this section.
Thurman W. Arnold III
Certified Family Law Specialist |
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| December 01, 2010 |
| Can My CHILDREN TESTIFY About Their PARENT PREFERENCE in Our Custody Case? |
| Posted By Thurman Arnold |
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Q. We have a hearing coming up before the Christmas holidays over custody and visitation issues. I believe my children should testify in court about their father's living conditions, as well as what they have told me about some things involving the woman he has sleeping over, and what their preferences are as to custody. Is this possible?
A. It is possible under current Family Code section 3042. It may or may not be a wise choice for the sake of your kids, however, since it sounds as if you expect one or more of them to say things to the judge that might be make them feel as if they've betrayed their dad, chosen you over them, or that they are being placed into the middle of your dispute. I beg you think carefully about what you say to your children, and what you do here.
AB 1050 passed both houses of the California legislature in August, 2010. It becomes law on January 1, 2011 as revised Family Code section 3042. However, it is not implemented until 1/1/2012. Existing law required family courts "if a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, to consider and give due weight to the wishes of the children" in making custody orders.
New Family Code section 3042 will require courts to permit a child who is 14 years of age or older to address the court regarding custody or visitation unless the court determines that doing so is not in the child's best interests, and in that case the court must explain that finding on the record. When judges and family court commissioners are instructed to state their findings on the record, it can sometimes be easier for them not to error on the side of permitting the testimony - which is why such provisions are added to statutes by their supporters. At the same time, requiring judges to state their reasoning does cause thinking judges to better evaluate the issues before them.
New Family Code section 3042 requires the court to provide an alternative means of obtaining information regarding the child's preferences if it does not allow a child 14 or older to testify as a witness.
Either minor's counsel, an evaluator, investigators, or mediators who provide custody recommendations to the court, must indicate to the Judge whether the child wishes to address the court - and the judge is also required to ask this question. Either parent's attorney may also make that representation to the Court, which then triggers the issue.
According to its author, Assemblywoman Fiona Ma, current law was not sufficient because children over a certain age who had the capacity to express important preferences were routinely not allowed to testify under former section 3042. Hence, she believed that children's wishes were ignored except through the voices of third party evaluators or minor's counsel, and even then that they were not given proper weight. In my experience this was factually true. There is a longstanding judicial antipathy towards the unseemingless of testimony from children, questions about the reliability of such testim
The statute does not preclude younger children from testifying and so the law is essentially unchanged as to them - in their cases the court is not required to make findings on the record if it does not permit testimony.
The Bill's author also stated that nothing in the statute will require a child to express his or her preference. Instead she claims that section 3042 is strictly intended to provide a better avenue for participation in the proceedings and not to pressure children to express their wishes against their will. By the way, Assemblywoman Ma also sponsored Assembly Bill 102 of 2007, which permitted parties to registered domestic partnerships to change their names to the last name of their new legal partner, which I support.
Accordingly, the Bill directs the California Judicial Council to promulgate standards and guidelines and rules and procedures for the examination of child witnesses, and to suggest alternate and less intrusive methods for obtaining the information about preferences beyond directly questioning them in court.
Hence, at least as to your children's custody preferences, depending upon their ages, after January 1, 2012, you will likely be able to have the judge listen to them, particularly since there will be a period of confusion, especially in smaller jurisdictions, about how to manage child testimony for months to come.
I beg you to be careful with the power this new law gives custodial parents, which I fear if misused may become an invitation and an opportunity to increase conflictual and alienating behaviors rather than a simple and useful means of allowing children a voice in the proceedings.
T.W. Arnold, III, CFLS
December 1, 2010
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| December 01, 2010 |
| What STANDARDS Are JUDGES Likely to APPLY When A REQUEST FOR CHILD TESTIMONY Is Made? |
| Posted By Thurman Arnold |
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Q. I have heard that children will be able to decide which parent they want to live with in 2011, is this true?
A. No. However, at certain ages their imput may become more important to courts in deciding the question effective 1/1/2012.
Revised Family Code section 3042, effective January 1, 2011 but not implemented until January 1, 2012, directs trial courts to allow testimony from children who are aged 14 years or more on issues relating to custody or visitation, unless the judge or family court commissioner makes a finding on the record that doing so would not be in the child's best interest. In the event a court makes such a finding, it is nonetheless required to "provide an alternate means of obtaining input from the child." This statute is on its face intended to allow children to express preferences about their relationships with their parents, whether they be in terms of primary residences or visitations, but it opens the door to much more. Some judges will struggle to limit its application, for some reasons.
I predict that it is going to become a time-consuming, destructive mainstay in the diet of family law courts and custody attorneys or that judges will develop a method of nullifying the intent of the statute. As an experienced custody and family law attorney, I believe it is a really bad idea. But for now the reality is that children will be testifying in court like never before. How will family law courts deal with this legislative mandate? I suspect quite reluctantly since family judges see the problem more clearly than our legislators apparently do.
Judicial policy is likely to require, as a threshold question, a balancing of a number of concerns. These include the need to protect the child from perceived harm from the act and consequences of testifying, the new statutory obligation to consider children's expressed wishes and their supposed desire to express those wishes (as probably urged by the proponent parent), and the probative value of the child's input in deciding the issuers at hand (this probative value is implicit in the statute). I think most judges will want to avoid such testimony, but are going to have figure out reasons they can readily articulate why not to take the testimony in order to avoid reversals by appellate courts.
In arguing in favor or against introducing such testimony, you will want to be able to talk to the court about the following likely threshold judicial concerns:
- Will it be useful to the court to permit questioning of this child?
- What will be the risks and benefits to a particular child of being permitted to testify in favor or against a parent?
- How shall testimony occur? Will it be allowed in open court, or in the judge's chambers?
- Will there be uniformity between jurists or branches or counties in terms of court policies, or will it just be every department decides for itself how and what rules apply?
- Who besides the judge will be allowed to ask questions of the child? This includes questioning outside the court proceeding, say when a third party is appointed to obtain the information for the court.
- What type of cross-examination will be permitted, since cross-examination is essential to assuring due process within the adversary court setting by testing the credibility and basis for testimony?
- Will any safety measures be adopted, and will there be any sensitivity to the potential consequences to children once kids are drawn into testifying, since they can't possibly have any understanding of how such testimony will affect their parental relationships with the nonfavored parent?
- Should different standards be applied in deciding to allow testimony from children about their parental preference when those requests are made after therapist based or similar recommendations come out and disfavor a party, as opposed to before they recommendations are known? After all, what is to stop every disgruntled parent from demanding that their child state their preference (which that parent doesn't like or accept) in every case?
- What testimonial facts will be relevant? A child's stated preference is one thing, but shouldn't a party or their attorney then be permitted to ask questions about parental coaching? Spoiling and buying kid's loyalty? Whether the child wants to live with mom or dad because they don't impose rules in their home?
- Does the court even have enough information to answer the threshold question of whether a child should be permitted to testify without first seeking outside assistance?
In order to succeed in achieving a client's goal of hearing from children when it serves that parent's agenda or perceptions, or in limiting either a child's input or damage to the child by having to voice a preference for one parent over another, custody lawyers and self-represented parties will do well to consider these questions in advance of making requests to the court.
It will be interesting to see if some judges effectively nullify the statutory mandate by imposing roadblocks or alternate routes that keep the questioning outside the family court proceeding itself.
Thurman Arnold, III, CFLS*
*State Bar of California, Board of Legal Specialization
12/2/2010
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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 'collaterals') 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.
Attorney T.W. Arnold III
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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 |
| 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.
Thurman W. Arnold III
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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 14, 2009 |
| How does my sister get CUSTODY of her GRANDSON? |
| Posted By Thurman Arnold |
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Q. My Neice has a 1 yr 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.
Thurman Arnold
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