Recent Posts in Parenting Evaluations Category

F.T. vs. L.J. (2011) 194 Cal.App.4th 1

F.T. v. L.J., case number D057493, is an important opinion for move-away applicants and their attorneys not just because it clarifies existing law and provides guidance on a host of issues commonly encountered in litigation over these arguably unfortunate situations, but it is going to be widely talked about by the mental health community and will influence how  Evidence Code 730 and Family Code section 3111 evaluators report to the courts because of this appellate court's attention to the details for what various FCS ("family court service" employees) and MHP's ("mental health professionals") opined. It appears that some of them, including the court mediators, took their eye off the ball as established by earlier legal precedent on this topic and the information presented to them.

The parties in this case dated for five or six months and this brief time together produced a bouncing baby boy in January, 2006. For the first thirteen months of his life, the child lived with Mom. On February 17, 2007, however, Mother burned her baby's arm with a hot curling iron "apparently to each him a lesson by showing him how hot it was." Father picked the boy up that evening, saw the injury, and took him to the hospital. Hospital staff called CPS and the police. Criminal charges were filed against the mother.

The child was placed with Dad and Mother's visitations were ordered supervised. Two weeks later he filed a petition to establish paternity and an OSC requesting orders for sole legal and physical custody. The parties were directed to attend custody mediation through Family Court Services but were unable to reach agreement, and so the mediator recommended that the child's primary residence be with Father and that Mother have supervised visits. In April, 2007, the parents stipulated to the recommended order "without prejudice to either party."

Five months later Father filed an OSC request seeking an order allowing him to move with the child to Texas. The parties were ordered back into mediation. At that time following a custody review hearing, the trial court removed the supervision requirement for Mom's visitation. Once again (surprise!) the parties could not agree in mediation, and the mediator recommended that Father have primary physical custody and that he be allowed to move, noting that in November, 2007, Mother had pleaded guilty to one count of simple battery on the child and was given four years' probation, and that she had an eleven year old child from a previous relationship who lived with the paternal grandparents.

For unknown reasons Father's request went off calendar at the time of the scheduled December, 2007, move-away hearing. In February, 2008, he refiled his application and psychologist Yanon Volcani, Ph.D., was appointed to conduct a psych evaluation of the parents and child. He issued a report in September, 2008.

Volcani recommended against the Father's proposed move to Texas, believing that it would interfere with this 2 1/2 year old's bonding with Mother because of the distance (based upon current best mental health opinions on the developmental stages of children). Volcani concluded that telephone, webcam, and other means of contact would not be well suited for a child this age, and had concerns whether Father would "enthusiastically" support the child's relationship with his mother. He also felt that mother had learned from her experience of burning the child, and while her action was 'rash, impulsive, and insensitive' the data did not suggest a "broader abusive intent." He recommended that Mother's timeshare be incrementally expanded.

On September 18, 2008, the trial court adopted Volcani's proposed parenting plan as a temporary order pending an evidentiary hearing, without prejudice, based upon findings that this was in the best interests of the minor. The matter was then lost in the limbo of hearing continuances and further court services mediations ultimately until March 5, 2010.

By now Father was requesting permission to move to Washington instead of Texas, and was intending on marrying a woman living there. Mother had married. Lynn Waldman, a Family Court services counselor, reported to the Court that she had learned that the minor child in 2009 began exhibiting rage, temper tantrums, and other behavioral issues at school and that this three year old was seeing a counselor who couldn't explain "where [Child's] anger is coming from. She interviewed Dr. Volcani but developed incorrect impressions about whether he'd last met with the parents over the two ensuing years after his initial report, and other misconceptions. She recommended against the move to Washington, but stated that Father should remain in his role as the primary caregiver.

In February, 2010, Volcani issued a report supplementing his opinions from September, 2008. Father by then had married his fiance, who herself had two teenagers. Volcani had re-interviewed the parents, the new spouses, and the minor's preschool teacher and therapist. He noted that since the initial evaluation that the parents had been co-parenting in a "relatively cooperative and stable manner." The minor was continuing to have rage issues (e.g., throwing a chair and punching another student) but these were improving. Still, because of the child's age it was difficult to know what was causing it.

On March 5, 2010, the trial court held a hearing but did not permit live testimony and denied the Father's request to move. The court made a number of findings which were not supported by the record. Chief among them was the conclusion that the parents "are not communicating" - when in fact Dr. Volcani actually stated otherwise and that their communications had vastly improved over the two years that had passed. Moreover, without any rational MHP support, the trial court concluded that the evidence proved the child's rage, speaking out in his sleep, and bed wetting all had to do with the parents' lack of a meaningful dialog. The court stated it "feels that the anger is coming from the tension between the two parties."

Maybe, but the court didn't pull this conclusion from any evidence before it in terms of an expert assessment and conclusion that this was the case (the child's own therapist couldn't explain the child's behaviors). Some conclusions apparently exceed what common sense would otherwise suggest.

By the way, what is a three year old doing with a therapist?

Anyway, the Court adopted Volcani's conclusion that the child's healthy development was being impeded, although on different grounds than Volcani had expressed. The court concluded "Father's reasons for the move, that is to join a new wife and family, are not sufficient and a new wife and family in Washington is not a sufficiently necessary reason to move the residence of [Child] to Washington...."

Huh?

Moreover, the Court implied that if Father decided to move anyway that the Court would take custody away from dad and give it to mother, a really bad idea under existing caselaw because of its coercive overtones.

Enter the Established Law of Move-Away

This is what makes this case important - a judge that was justifiably bothered by the impact that the relocation would have on the relationship between a parent (mother) and child understandably struggled not to permit the move. But she was wrong and the appellate court scolds her harshly for it. Her decision was not an exercise of informed discretion.

At the same time, some of the Father's arguments were off-track as well. For instance, he argued that he had a presumptive right to move under authority of Family Code section 7501 which states: " A parent entitled to the custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child." The Fourth Appellate District ruled that 7501 only applies to "final" custody determinations, and not those that are "temporary," following the case of Montenegro v. Diaz (2001) 26 Cal.4th 249. Here the parties had lived under a "stipulation" for two years, but had never reduced it to a final agreement and no court had ever ruled as to any contested matter within the context of an evidentiary hearing. This is a rule that most family law attorneys already know well (which is why the smart ones write their orders to declare the custody agreements favoring their clients as "final" orders). The practical effect of this fact in this case was that "Mother did not have an initial burden to show [that] Child would suffer detriment were he to move with Father to Washington." 

Father also argued that because Mother had been convicted of battering her son, a presumption arose under Family Code section 3044 that she should not have custody of the boy that was possibly "conclusive" if not merely rebuttable. While the idea that the presumption might be conclusive based evidently upon the appalling seriousness of intentionally burning a child is ... creative ... it doesn't track in the slightest what California law says on the subject, and was quickly disposed of by the appellate judges. The justices ruled that "[a] section 3044 finding of domestic violence 'in a family law case changes the burden of persuasion as to the best interests test, but it does not limit the evidence cognizable by the court, and it does not eliminate the best interest requirement."  "Nor does the statute establish a presumption for or against joint custody; again, the paramount factor is the child's health, safety and welfare. And where the section 3044 presumption has been rebutted, there is no statutory bar against an award of joint or sole custody to a parent who was the subject of the order. This is particularly important in move-away cases." In this case the trial court had not made any express findings under section 3044 anyway, so on remand that is a subject the court is directed to pick up.

However, what the trial court did wrong is this:

The father had no burden to prove his move was "necessary". When the trial court opined that "Father's reasons for the move, that is to join a new wife and family, are not sufficient and a new wife and family in Washington is not a sufficiently necessary reason to move the residence of [Child] to Washington...." it supplanted the rule of law with an understandable discomfort with the effects the move would have on Mom's relationship with her son. The issue instead was the best interests of the child, and that decision must be considered in light of the established rule that "the paramount need for continuity and stability in custody arrangements - and the harm that may result from established patterns of care and emotional bonds with the primary caretaker [father here] - weigh heavily in favor of maintaining ongoing custody arrangements." 

Hence, Judge Schall's "order denying Father's motion reveals a misunderstanding of the determination a trial court must make in deciding a move-away motion by a custodial parent. In this case, the trial court, in effect, avoided the ultimate question whether a change in custody would be in Child's best interests were the custodial parent (Father) to move to Washington.... The question ... is not whether the parent may be permitted to move; the question is what arrangement for custody should be made [if and when the custodial parent moves]." A custodial parent is not required to show a planned relocation is necessary.

In other words, the trial court has to assume the plan for the proposed move is a serious one, and has to address the issue of custody as though the move will occur. Moreover, and this is the heart of the decision and the basis for reversal, "[t]o the extent the trial court denied Father's move-away motion with the goal of maintaining the status quo and/or coercing Father to abandon his plan to move to Washington, it erred." [Italics added].

Finally, while the effect of a move will naturally be detrimental to the child's relationship with the remaining parent, this is but one factor for the court to consider and cannot be the sole basis for denying a move. The case of Marriage of LaMusga (2004) 32 Cal.4th 1072 (hand's down the most important move-away case to know), establishes a litany of factors for trial courts to consider in their totality - which is the subject for another Blog.

This case is reversed and remanded to the trial court to evaluate all the LaMusga factors and so exercise an informed discretion before summarily denying Father's request to move.

Okay, sorry, I'm tired now - I'll be back to add some more thoughts!

Thurman W. Arnold, III, C.F.L.S.

    "(a) At a hearing on any order to show cause or notice of motion brought pursuant to this code, absent a stipulation of the parties or a finding of good cause pursuant to subdivision (b), the court shall receive any live, competent testimony that is relevant and within the scope of the hearing and the court may ask questions of the parties.

    (b) In appropriate cases, a court may make a finding of good cause to refuse to receive live testimony and shall state its reasons for the finding on the record or in writing. The Judicial Council shall, by January 1, 2012, adopt a statewide rule of court regarding the factors a court shall consider in making a finding of good cause.

    (c) A party seeking to present live testimony from witnesses other than the parties shall, prior to the hearing, file and serve a witness list with a brief description of the anticipated testimony.

If the witness list is not served prior to the hearing, the court may, on request, grant a brief continuance and may make appropriate temporary orders pending the continued hearing."

Family Code section 217 will cause a sea-change in day to day family court proceedings across our state, unless family court judicial officers ignore it to the limited extent possible by court rules.  It will likely have immense financial and resource consequences upon not only the courts but upon parties to family court proceedings.  It will force the state government in coming years to study whole new paradigms for resolving divorce and domestic partnership dissolution outside the adversary template, including those currently practiced in New Zealand and southern Australia. 

It will also pressure parties to consider mediation, and collaborative processes which occur outside congested courthouses, much more carefully.  The costs of adversary litigation are about to sky-rocket, making mediation even more appealing from a financial perspective (I have written extensively about the emotional and psychological benefits here an elsewhere).  There simply is no governmental money available to absorb the coming Elkins Onslaught. For more information about an alternative method for resolving family disputes, please visit us at www.DesertFamilyMediationServices.com.
  
At the same time, at least in the short run taken together with some of the other revisions that become effective next month, it may encourage more people to litigate more stubbornly and so make mediation seem less attractive than it did before the changes (just the reverse will be true).  Some folks will mistakenly assume that this invites the use of court hearings as a live-testimony forum for sharing unresolved complaints relating to their marriage or domestic partnership dissolution with the other party in open court.  Instead, judges will sustain objections to such irrelevant material and parties who seek to use Family Court as a platform to air relationship grievances will find themselves alienating the trier of fact in ways that will have adverse consequences to them beyond just the time and expense of the exercise. 

The purpose of today's Blog is to introduce you to section 217 and the new changes.  I will follow up with more articles in coming weeks.  Without a doubt the new rules will make all the information I provide on my websites more relevant and timely for my readers. 

• 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.

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.